The Volokh Conspiracy - Is Poker a Game of Chance or Skill?

Whether poker qualifies as a "game of chance" has significant legal implications. In can determine whether a game is legal or not, as many states exempt games of skill from anti-gambling rules. No surprise then (as the Los Angeles Times reports), the definition of poker has become a question for the courts.

Many games are easy to identify as either games of skill or games of chance, even though they combine a bit of both. Football is mostly about the skill of the players and coaches, but chance influences the games as well. There are some things that can influence the outcome of a game, such as the weather in an outdoor stadium, that are completely beyond human control. We still would not say football is a "game of chance," as the better team with better coaches will win more often than not.

Sports are easy. More difficult are games in which chance plays a larger, if not wholly determinative role. Consider Backgammon. Chance -- the rolls of the dice -- can determine the outcome in any single game. Yet there is significant skill involved in playing well and, over time, a better player will beat a worse player more often than not. Other games, such as Blackjack, are clearly games of chance even if they involve some small amount of skill. In Blackjack, for instance, there is a "best" way to play that will minimize one's losses against the house, but the result is still up to chance. If you play the perfect Blackjack game (without counting cards), and the dealer follows house rules, whether you win or lose is completely up to chance (and your odds are not that good).

So what's poker? In my opinion, playing poker at a high level requires an immense amount of skill, and better poker players will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker; the cards may still have their say. According to a judge quoted in the LA Times article: "A poker player may give himself a statistical advantage through skill or experience, but that player is always subject to defeat when the next card is turned." Nonetheless, some charged with organizing or participating in illegal poker games are pressing the argument that poker is not a "game of chance" and is not illegal under state statutes prohibiting gambling on such games. I wish them luck when they make this argument in court.

	[Jonathan Adler, September 4, 2009 at 3:38pm] Trackbacks Is Poker a Game of Chance or Skill? Whether poker qualifies as a "game of chance" has significant legal implications. In can determine whether a game is legal or not, as many states exempt games of skill from anti-gambling rules. No surprise then (as the Los Angeles Times reports), the definition of poker has become a question for the courts. Many games are easy to identify as either games of skill or games of chance, even though they combine a bit of both. Football is mostly about the skill of the players and coaches, but chance influences the games as well. There are some things that can influence the outcome of a game, such as the weather in an outdoor stadium, that are completely beyond human control. We still would not say football is a "game of chance," as the better team with better coaches will win more often than not. Sports are easy. More difficult are games in which chance plays a larger, if not wholly determinative role. Consider Backgammon. Chance -- the rolls of the dice -- can determine the outcome in any single game. Yet there is significant skill involved in playing well and, over time, a better player will beat a worse player more often than not. Other games, such as Blackjack, are clearly games of chance even if they involve some small amount of skill. In Blackjack, for instance, there is a "best" way to play that will minimize one's losses against the house, but the result is still up to chance. If you play the perfect Blackjack game (without counting cards), and the dealer follows house rules, whether you win or lose is completely up to chance (and your odds are not that good). So what's poker? In my opinion, playing poker at a high level requires an immense amount of skill, and better poker players will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker; the cards may still have their say. According to a judge quoted in the LA Times article: "A poker player may give himself a statistical advantage through skill or experience, but that player is always subject to defeat when the next card is turned." Nonetheless, some charged with organizing or participating in illegal poker games are pressing the argument that poker is not a "game of chance" and is not illegal under state statutes prohibiting gambling on such games. I wish them luck when they make this argument in court.