Can the Skill Level of a Game of Chance Be Measured?

People have long been attracted to games of chance, perhaps because they appeal to a universal “gambling instinct” that dangles the hope and thrill of significant reward in exchange for little investment. Governments have long taken an interest in regulating games of chance, perhaps in an attempt to prevent citizens from the deleterious effects of the gambling instinct, toward which those untutored and unsuspecting citizens will disproportionately be attracted.

In some states, it is permitted to wager on games whose outcomes are decided preponderantly based on skill. Some jurisdictions phrase the law in reverse, prohibiting wagers on games for which chance plays a “material” role in determining the outcome. The courts have labored to concretize “preponderance” and “material,” but they have not done so in an adequate and unambiguous way. As a result, there is no clear legal consensus as to whether popular gambling games are protected legal activities, and there is certainly no federal regulation that would apply to games of chance played on the Internet.

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