Exploring New Approaches to Unsettled Legal Questions

Tag: Frank A. Schreck Gaming Law Competition

Keeping States Out of Bingo: How the Federal Interest in Indian American Sovereignty Protects Tribes’ Rights to Gamble Online

by Matan Skolnik*

It is “a principal goal of Federal Indian policy . . . to promote tribal economic development, tribal self-sufficiency, and strong tribal government.”1 Accordingly, states’ authority to intervene in the activities of Indian American tribes on tribal land is limited. An often-disputed area of this discussion pertains to tribal gaming. Federal law provides that only state laws that prohibit a game—not those that merely regulate one—are enforceable in tribal territories. But does a state law that prohibits online gaming constitute a prohibition such that the law can be enforced on tribal land, or does it merely regulate the manner in which the game can be played? This contribution argues that such a law would be a regulation, unenforceable on tribal land, and that public policy benefits support that result.

Old Laws in Modern Times: How a 1961 Law Could Mean Game Over for Online Sports Betting

by Elizabeth Lewis*

The Federal Wire Act prohibits the use of any “wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.” While, in practice, this law has been sparsely used to prosecute illegal betting operations that cross state or national lines, a recent wave of states legalizing online gambling has brought to light the Act’s potential applicability to all federally controlled wires, even those within a single state. This Contribution argues that the Wire Act has the potential to reach nearly all online sports gambling, and, given the clear trend towards state legalization, should be revised either to explicitly exempt gambling legalized by states, or, conversely, should be limited to apply only to illegal offshore gambling operations, which may be more difficult for states themselves to regulate.

West Flagler Associates v. Haaland: An Attempt to Game the Indian Gaming Regulatory Act

by Matthew Dorfman*

In 2021, the Seminole Tribe of the State of Florida and the State of Florida signed a gaming compact that was tacitly approved by Secretary of the Interior Deb Haaland. The compact allowed the Seminole Tribe to operate an online sports gambling application throughout the State by deeming the location of all gaming activity as having taken place exclusively on Native lands. This Contribution argues that the meaning of the word “on” as derived from ordinary usage and from usage under similar statutory circumstances precludes the perspective adopted by the Seminole Tribe and the State of Florida, and thus requires the Secretary of the Interior to reject the gaming compact.

Pleading the Fifth in State Regulatory Proceedings Concerning State-Sanctioned Medical Marijuana Use

by Andrew Wells*

To date, thirty-six states have legalized the possession and use of medical marijuana. However, marijuana possession—regardless of use—is still a federal crime under the Controlled Substances Act (21 U.S.C. § 811). This discrepancy means that an individual legally using medical marijuana under state law can still be prosecuted for violating federal law. In this Contribution, Andrew Wells (’22) argues that Fifth Amendment privilege invocation is proper in such circumstances because the Fifth Amendment protects individuals against compelled disclosures that would create the possibility of prosecution.

How One’s Status as a Medical Marijuana Card Holder Jeopardizes One’s Statutory Eligibility to Hold a Casino License

by Anthony Cruz*

Numerous states have legalized marijuana both for recreational and medicinal use. Many of those same states have also taken the step of legalizing gambling. In this Contribution, Anthony Cruz (’22) examines the legal issues that result when two heavily regulated industries like the cannabis and gaming industries overlap. State-based prohibitions on gaming licensees participating in the cannabis market, both by statute and by regulation, present issues of statutory construction in light of conflict-ing legislative signals; issues of administrative due process against a backdrop of perpetually evolving state and federal guidelines on controlled substances; and issues of intrastate federalism.

Voluntary Intoxication Defense to Contracting: Is Summary Judgment Appropriate in the Casino Context?

by Emily Kaplan*

In this Contribution, Emily Kaplan (’21) addresses the propriety of summary judgment when a casino patron raises a voluntary intoxication defense to contracting. Courts around the country recognize the voluntary intoxication defense in a casino context, which requires the casino patron to prove his and the casino employees’ states of mind. In general, summary judgment is typically not appropriate in cases involving state of mind because whether a party had the requisite state of mind will be a question of fact. This has even more weight in the voluntary intoxication context, where a court will rarely be able to decide as a matter of law whether a casino patron was sufficiently intoxicated to render the patron unable to understand the nature and consequences of his action, or whether the casino knew or had reason to know of that intoxication. Both determinations are required to prevail on a voluntary intoxication defense. Moreover, it would be a poor policy choice to allow casinos to profit off of their overly intoxicated patrons. This article does not address the propriety of allowing a voluntary intoxication defense in the casino context, but as long as the defense is recognized, it cannot be merely illusory; patrons must have the ability to prevail, at least to trial. Therefore, casinos should generally not be able to use summary judgment as a tool to profit off of intoxicated casino patrons.

Maintaining the Narrow Scope of the Bona Fide Occupational Qualification: Rejecting Gender Discrimination in Bartender Hiring

by Matthew A. Peterson*

This Contribution examines whether a bar can discriminate on the basis of gender in its bartender hiring practices. Matthew Peterson (’21) argues that Title VII’s bona fide occupational qualification (“BFOQ”) exception should not shield bars from gender discrimination liability. The text and purpose of Title VII command a narrow interpretation of the BFOQ exception, and a bar catering to preferences for female bartenders is precisely the type of undesirable hiring practice that Title VII seeks to prohibit. The “essence” of a bar is making and distributing drinks, and the completion of these tasks does not depend upon the gender of a bartender. Courts should not permit bars to justify such discrimination with claims of supporting “authentic entertainment.” Unlike an actor or dancer, whose core job function is performance, a bartender’s primary responsibility is providing service.

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