The Supreme Court’s “anti-commandeering” doctrine holds that the federal government lacks authority under the Constitution simply to order state governments to implement federal programs or act affirmatively in other ways. Did Congress overstep this bound when it enacted the Professional and Amateur Sports Protection Act of 1992 (PASPA), a federal statute that with some exceptions forbids states to “authorize” sports gambling “by law”? That question has come up in a case in which New Jersey sought to repeal some of its old gambling laws. [Ilya Shapiro and David McDonald on Cato’s amicus brief participation supporting New Jersey’s petition for Supreme Court review in Christie v. NCAA et al.]
Under an old Illinois law, not only can persons who lose at unlawful gambling sue the winners to claw back their losses, but if they fail to act, literally any other person can sue demanding that money. Citing this law, two women sued online-poker operators seeking to recover gambling losses of men who happened to be their sons (but could as easily under the law have been strangers). A Seventh Circuit panel, Judge Posner writing, has now upheld a lower court’s dismissal of the case (an intended class action) on the grounds that the Illinois law by its terms allows suit only against the other gamblers who won the poker games in question, not the house that collected a fee for presiding. [Courthouse News, Rakebrain; opinion in Sonnenberg v. Amaya Group Holdings via John Ross, Institute for Justice “Short Circuit”]
While on the subject of Judge Posner, Harvard Magazine has a Lincoln Caplan interview with him that is worth a read.
Game of skill, or game of chance? “The [class-action] suit, filed in Manhattan federal court on behalf of FanDuel and DraftKings players nationwide, accuses Visa, MasterCard, American Express and other defendants of participating in a racketeering scheme to facilitate illegal gambling operations.” [Alison Frankel, Reuters]
“After a month-long investigation, New York State Attorney General Eric Schneiderman is sending cease-and-desist letters to DraftKings and FanDuel — essentially banning the two sites from operating in New York. Schneiderman feels that they are illegal gambling sites, rather than offering games of skill as both companies argue.” [Neal Ungerleider/Fast Company, David Marcus/Federalist, earlier]
More: “I challenge you to a fantasy football duel, Eric Schneiderman” [Paul McPolin, New York Post]
Financial economists and fans of old murder mysteries know about tontines. Was the law too hasty in banning them? [Jeff Guo, Washington Post “WonkBlog”]
“And for those who had cash seized from them — one player had more than $20,000, the regular player said — the police agreed to return 60 percent of the money, and keep 40 percent. … in Virginia state courts the local police agency may keep 100 percent of what they seize.” In a Fairfax SWAT raid on unlawful private gambling nine years ago, an officer shot and killed Sal Culosi, an optometrist who “had no criminal record and no known weapons.” [Washington Post, earlier (Radley Balko: Culosi incident in 2006 “wasn’t even the first time a Virginia SWAT team had killed someone during a gambling raid”)]
Big Mouse is apparently afraid of getting sued on charges of operating a gambling establishment. [Orlando Sentinel]
George Leef reviews a new book by John Compton, political scientist at Chapman University, on how evangelical anti-vice campaigns against gambling, liquor and other social ills helped undermine the Constitution’s curbs on centralized power, paving the way for later Progressive gains.
The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.
The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions in favor of approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in.
For example, when the Court decided the 1934 case of Blaisdell v. Savings and Loan, gutting the former understanding of the impairment of contracts clause, Chief Justice Charles Evans Hughes cited an earlier decision on interstate shipment of lottery tickets which had acquiesced in a new extension of the police power, on the grounds that a previously sacrosanct constitutional barrier could be “qualified” when a state needed to “safeguard the interests of its people.” [Forbes]
- “Cato Went 10-1 at Supreme Court This Term” [Ilya Shapiro; on merits cases] Yesterday I spoke to a private policy gathering in Annapolis, Md. with a retrospective on the Supreme Court term, especially its lessons for state government. If you’re looking for a speaker on Court issues, I or one of my colleagues at Cato’s Center for Constitutional Studies may fit the bill;
- “CrossFit Sues ‘Competitor’ For Revealing Its Injury Rates” [DeadSpin]
- New Jersey court rules for casino in unshuffled baccarat deck case [Elie Mystal/Above the Law, earlier]
- Family rescued from 1000 miles offshore plans to sue over nonworking satellite cell phone [ABC 10 News]
- Tartly worded response to third-party-subpoena demand in Sherrod/Breitbart case [attorney Robert Driscoll]
- Legal academia: Prof. Bainbridge takes on law-and, empirical legal studies crowds [Bainbridge, TaxProf and reactions] George Leef on reforming law schools [Pope Center]
- “Uber Agrees to End Surge Pricing During NY Emergencies, And Why That Means You’ll Never Find a Ride” [Gary Leff; Peter Van Doren, Cato]