Tag: Gaming Law

by Luke Pluta-Ehlers*

For the bulk of American history, most forms of gambling have been illegal or heavily regulated. To further deter unlawful gambling, 30 states have passed Loss Recovery Acts (“LRAs”), which allow the loser of an illegal gambling transaction to sue the winner. Some states’ LRAs go further, allowing a third party to sue for doubled or tripled damages if the loser does not bring suit. One such state is Kentucky. In 2020, the Kentucky Supreme Court decided Commonwealth ex rel. Brown v. Stars Interactive Holdings, ruling that the state of Kentucky qualified as “any other person” and could thus sue for treble damages under the state’s LRA. The court reasoned that because the state has exclusive domain over prosecuting criminal cases, the state should not be presumed excluded from the group of persons with standing to sue under the LRA. This Contribution argues that the appellate court decision overturned by the Kentucky Supreme Court better handled the novel question of whether a state can sue under an LRA. The appellate court’s approach was more in line with the cautious manner in which other courts have interpreted who can sue and be sued under penal qui tam gambling statutes. Further, this Contribution argues that permitting a state to sue under an LRA is a troubling grant of authority, as it allows the state to delegate and pursue enforcement of its criminal laws under the more generous standard of a civil lawsuit. This Contribution briefly discusses the history of LRAs, compares the holdings of the Kentucky appellate court and Supreme Court, and explains why the appellate court better examined the state’s role in law enforcement via a penal LRA.

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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.

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.

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.

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.