Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazards of Using Illogic to Define Legality of Games of Mixed Skill and Chance
May 2009

I. Introduction

Games offering prizes are ubiquitous in our society. If an individual buys a hamburger, he or she may have a chance to win a small fortune. Youngsters at pizza parlors spend tokens to win tickets redeemable for prizes such as stuffed animals. Various other forms of lotteries, casinos, and other games - both legal and illegal - also appeal to the gambling instinct. Despite the popularity of these activities, courts are surprisingly inconsistent in defining what gambling is, either as unlawful activity or when subject to regulation. Indeed, the inconsistencies turn often to illogic when attempting to apply tests to distinguish gambling and nongambling activities.

This Article concerns one significant difference between gambling and nongambling prize games: the element of skill. The laws in most states are pretty clear on the difference between risking money on a roulette table and competing for a scholarship in a science competition. But what about competitions that mix both skill and chance? What should the standards be for an activity that blurs the line between legal and illegal or regulated and unregulated? How should a court apply these standards? This Article attempts to address these issues.

II. The History of Chance Based Games

“Throughout history gambling has been one of man’s most frequent endeavors,” In various forms, “gambling has been present in all cultures” during all periods of time. “Anthropological studies reveal its ubiquitous occurrence in the most primitive of societies and that modern games of chance are merely sophisticated versions of games once played by our forbearers.” For instance, “[T]he drawing of lots probably constitutes the oldest form of gambling….” “The origin of the word ‘lot’ is the Teutonic root hleut, which meant the pebble that was cast to decide disputes and divisions of property. This is also the source of the Italian word lotteria and the French loterie, which eventually came to mean a game of chance.” The Bible contains many references to the us of “lots” to settle disputes and divide property. Moses divided land among Israel’s twelve tribes by choosing lots, and the Bible describes Roman soldiers casting lots for the robes of Christ following his crucifixion.

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