The Gambling Law Review: Gambling: A Legal and Philosophical Overview
The following chapters of this book set out a comparative analysis of the laws relating to gambling across a variety of states and jurisdictions. The objective of such a work must necessarily be limited to providing a general guide to the laws in each individual state. However, bringing together these summaries also affords a different opportunity: the chance to compare and contrast different legal approaches. Comparative analysis is important because it helps us to understand rather than simply know the law, by explaining and demonstrating the different cultural contexts in which law has developed to mirror and control the societies in which those laws operate.
Gambling law is an apt topic for such an analysis for a number of reasons. First, compared to some other legal disciplines (such as financial regulation, digital copyright, competition or telecoms law), gambling has a very long history and deep roots in human culture and legislation. To give two examples, until 2007, UK gambling law included contributions from the Gaming Acts dating back as early as 1710 and 1738. The current law relating to gambling in India (the Public Gambling Act) dates from 1867. Prior to reform of the law in 2010, French law on lotteries dated to 1933 and its horse race pari-mutuel betting laws from 1891. There are many other examples.
Second, gambling is often considered to be a distinct field of human activity, subject to a discrete set of rules, all of which address some basic legal problems about controlling human conduct. Consequently, the corpus of available materials is thankfully quite limited, but the subject matter is a topic that affects and interests the public in general, involves consumers' basic rights and desires, but also social dangers, the potential for criminality, addiction and so on, as well as having moral and religious resonances. In short, anyone who wishes to understand gambling law needs to keep in mind two somewhat contradictory principles: first, that all gambling law is derived from a local societal context and, second, that the attractions of and risks associated with gambling are universal.
A further reason why gambling law is an interesting area for academic study is that, in the past 25 years, the advent of the internet has caused the availability of and social attitudes towards gambling to change considerably. This in turn has forced national governments to reconsider how the law should change and adapt to deal with these new technological and cultural developments. Gambling is, therefore, not only a field of diverse legal approaches, but an example of law undergoing rapid evolution. Over the past 15 years, many EU Member States have changed their laws on gambling regulation, and several governments outside the EU are actively engaged in creating regulatory regimes for gambling for the first time as a result of these technological changes.
Consequently, one of the unusual challenges that faces gambling lawyers is the need to advise not only on what the law is in a particular jurisdiction, but also to assist gambling operators (and sometimes regulators) to understand how to predict future developments in the law. Businesses involved in gambling (be they operators or those who provide ancillary services to operators) often have an obsessive focus on the way that the law might develop – how different countries may liberalise (or restrict) access to gambling, how they are likely to tax and regulate it, and their attitude to foreign interference in the local market. In such activities, there is always a significant tension between the desire to capitalise on changes to the law (or uncertainties in its enforcement or interpretation) and the overall desire to remain compliant and operate within the licences that have been granted to the operator.
In making those judgements, one must understand the underlying attitudes and pressures on lawmakers, and the different solutions and models that might be developed. So it is worth spending time considering the wider contexts and characteristics of gambling to develop what might be described as an 'instinctive feel' for how a particular jurisdiction or government will deal with the issues involved. First, therefore, let us look (albeit very briefly) at some of the cultural influences that have shaped attitudes to gambling.
II Cultural contexts
Gambling is one of those activities with an almost universal appeal. Wherever we look in the world and in whatever culture, we find humans competing, protecting families and bonds of kinship, engaging in commerce, in conflict, and, when time allows, creating art and playing. The urge to hazard and to play is something found in all cultures and at all periods in history after man as a species developed a sufficient sophistication to have time for some kind of leisure. We find gaming tokens in Ancient Egypt, Meso-America, across the Roman Empire and deeply ingrained in Asian culture. In short, gambling as an activity is as ubiquitous and deep-rooted as art or music.2
The question for the student of gambling, as for the anthropologist, is not whether people will gamble, but how gamblers, governments and wider society should view and control such conduct. Although gambling is a human constant, the way in which society views such conduct has varied widely over the centuries. Very often, the basis of the treatment of gambling is religious or cultural. But as with many such ideas, the ideas that lie behind religious or cultural notions are ultimately based in pragmatism. Let us isolate some of these.
In many cultures, gambling is frowned upon because at its heart it is a conflict between players, which leads to one person giving up his or her possessions to another unwillingly as a result of losing. One can trace the roots of this societal disapproval back into the very earliest cultures, when resources for survival were scarce and a group effort was required to deliver a harvest capable of sustaining the community through the winter seasons. In such circumstances, spending time on a pursuit in which people redivided those resources (rather than creating new ones) was essentially counterproductive, and so should be an activity either banned altogether or at least heavily restricted to those times and places when there was true leisure to be taken. It was, in essence, a waste of precious time and something that brought people into needless conflict. Consequently, a number of societies condemn gambling on the basis that it is socially divisive and unproductive. In that respect, the chance-based nature of most gambling can be distinguished from sports, which might be said to increase stamina, strength or skill, and therefore have some element of social utility.
III Religious contexts
Apart from the lack of social utility in gambling, one widespread religious concept is that in order to be close to the divine, man must disassociate himself from material desires. Christianity has strong themes on the need for poverty and simplicity of life, as well as the importance of giving away material possessions. In Buddhism, the desire for things is seen as the central barrier to the attainment of enlightenment. In Hinduism, the ideals of living simply, without luxury, and of working hard are central to the dharma or duty that each individual undertakes in life. Islam recognises gambling as one of three serious sins, the others being drinking of alcohol and the worship of idols. Islamic teaching singles out azlam as a specific form of prohibited gambling where the meat from a camel is divided into 28 parts, and is then allocated among 10 participants, with the largest winner obtaining a full quarter of the meat, others receiving lesser shares and the three holders of the 'losing' tokens receiving nothing, but still having to contribute payment for the animal. This encapsulates (and formally condemns) precisely the chance-based allocation of resources discussed above. The excitement and worldliness of gambling for monetary winnings seem contrary to these various religious ideals. The contrast between the divine and the material could not be more clearly juxtaposed than in the image (recorded in all four gospels) of Roman soldiers casting lots for Christ's garments at the very point of his crucifixion.3
Another way in which gambling comes into conflict with religious observance is that it emulates certain aspects of religious practice. One important function of the priestly classes of many early religions was the prediction of the future (success in battle, times of flood and times of harvest or the will of the gods more generally) by interpreting an act of nature or of random chance. In ancient Rome, the interpretation of entrails (haruspication) was a relatively mainstream part of religious practice (from which we have the more common word 'auspices'). There are many other forms of divination that play on the random, including numerology and ceromancy (the dropping of hot wax into water). Prominent among these are sortilege (the drawing of lots), osteomancy (the casting of bones) and cartomancy – the prediction of the future using cards such as the tarot. In each of these three practices, one can see immediate parallels with gambling behaviour, where marked knuckle bones are transformed into dice, the drawing of lots mirrors the selection of lottery tickets, and the shuffling and dealing out of the tarot deck is transformed into the card games of today.
If this is thought to be a somewhat slender and theoretical basis as a cultural foundation for gambling, it is worth noting that there are more than 70 references in the Old Testament to the drawing of lots to determine God's will (including, for example, the decision to throw Jonah into the whale and David's decision to start battle against the Philistines). The tools of divination (the stones of Urim and Thummim) were literally attached to the breastplate of the priest in the Book of Exodus. In the New Testament, following the death of Judas, the apostles decided upon the identity of the new apostle (Matthias) by a similar process and, in a completely different religious context, the identity of the Dalai Lama is revealed by the random selection of names spun round in bowls of barley meal.
So at the heart of gambling behaviour we find practices that emulate important sacred rites. Gambling practices often refer explicitly or obliquely to one's wider fate in life, such as 'the wheel of fortune' or calling upon the 'Fates' or 'Lady Luck'. Gambling may, therefore, be seen as a misuse of religious tools and practices for worldly and material purposes. All these factors create feelings of suspicion (and perhaps also superstition) in relation to gambling. To be clear, gambling and religious divination are not the same, and do not necessarily spring from the same origins, but they do tap into the same deep human beliefs about fate, luck and mechanisms for predicting the future. Even now, we still toss a coin to make decisions. By doing so, we are taking that decision from human hands, and placing it in the 'lap of the Gods'.
IV Social perception and social risks
One of the difficulties of legislating for gambling is that it encompasses a wide variety of different social activities with completely different social perceptions and risk factors. In considering the gambling landscape of a particular jurisdiction and the way that gambling is likely to be regulated, it is important to have an overall grasp of what is popular and why. This includes a consideration of how gamblers are perceived (and how they perceive themselves), the types of gambling that are popular and the risks arising to players as a result. This is a very complex topic, well beyond the scope of an introduction such as this, but to understand legal systems designed to control gambling, one requires an understanding of the role and character of different forms of gambling within that society.
One may start with the types of gambling that are actually popular. Poker is a very popular game in the United States, but in India it is largely unknown, with rummy being the more popular card game. Sic bo and pai gow are not popular in the West, but form a mainstay of Asian gambling. Backgammon only has wide appeal in Turkish, North African and Arab societies, while pachinko is a curiously Japanese phenomenon.
Another way of dividing the landscape is to categorise gambling by demographic and social risk. High-stakes casino games may often be regarded as pastimes reserved for rich tourists and James Bond-esque characters who can afford to lose and require little in the way of social protection. However, a government considering the regulation of gaming machines in working men's bars or cash betting on cricket by millions of citizens on the Indian subcontinent might quite properly focus on the social harm that gambling can cause in societies where disposable income is low. Other forms of gambling, such as bingo, have a completely different social connotation and function – being primarily a 'risk-free' activity enjoyed as part of friendly sociability (and may, therefore, actually act as a form of 'social service' rather than a social risk). Still other forms, such as lotteries, actually form a mainstay of charitable giving, and may not even be regarded as a form of gambling by many of those who buy tickets.
V Government as gambling operator
Even if gambling is treated as a morally neutral economic activity, it requires some form of legal control in the same way as other commercial activities. There needs to be a degree of regulatory oversight to ensure fairness and consistency (all the more so in relation to an activity that is inherently unpredictable and prone to manipulation). Consequently, as a matter of public order, governments have often intervened in order to ensure consistency and fairness in the gambling process.
However, and almost inevitably, the involvement of government in gambling has not been restricted to its control or suppression. For many centuries, different types of ruling authority have recognised that there is much to be gained from organising and permitting gambling as a means of generating tax revenue. There are many historical examples of governments appropriating control of gambling. Lotteries have been used to fund military expenditure, cultural monuments and to raise funds to help with disasters. State lotteries remain one of the most ubiquitous forms of gambling (and in some jurisdictions, the only form of gambling allowed).
The intervention of government in gambling gives rise to a sometimes uncomfortable conflict of interest. Once a government organises and profits from gambling through taxation, it cannot by the same token condemn it as illegal or morally inappropriate. National lotteries may help many good causes, but the net economic effect of such state-based gambling is nearly always a redistribution of wealth away from the poor (who proportionately spend more of their disposable income on lottery tickets than the rich) and in favour of the better off (who tend to enjoy the type of educational, cultural and sporting activities that lotteries often fund). Further, governments that regulate gambling have to tread a careful balance between criticising the social harm that gambling can cause to a small minority of players, and accepting and acknowledging government's own involvement as a gambling operator.
VI Models of regulation
Academics4 have distinguished five different models for describing the different regulatory approaches to gambling, which exist along a spectrum of tolerance. They may be summarised as follows:
- Some governments (mostly those that have a strong religious component, such as some Arab and Asian regimes) regard gambling as a sin. These states take the view that gambling should be the subject of a near or total ban. The criminal law is used to prevent gambling, but also to prevent the advertising of gambling or access to online gambling sites located abroad.
- There are governments that take a highly paternalistic approach towards social freedoms of their citizens, and seek to impose tight controls on gambling. These societies may have a limited state lottery or other state-owned gambling, but will not usually allow gambling to be operated by private enterprise. Such governments may also permit casinos to exist in tourist destinations, but ensure that access is restricted to the foreign population only and that local people are barred. Examples of this type of approach (expressed generally) include India, Vietnam and North Korea.
- There are governments that recognise the social dangers of gambling, but also the freedoms of their citizens to make a choice about their forms of entertainment. These governments generally restrict access to gambling but at the same time take a pragmatic view that prohibiting gambling is extremely difficult (and may not be morally justifiable in a democratic society) and therefore permit most forms of gambling, though subject to careful regulation. Most continental European governments used to fall within this category, though a number have now moved to greater liberalisation of the market.
- There are governments who treat gambling as being merely another form of commerce and who provide a liberal regime for operators. In these jurisdictions, one is likely to find gambling opportunities integrated within normal retail environments. Such jurisdictions still have rules designed to protect children and the vulnerable from exposure to gambling and will normally have a blend of private enterprise-led gambling of all forms, as well as some state-controlled gambling (such as a national lottery). The UK is an example of such a liberal regime, although of late it has been moving to impose tighter controls than at the beginning of the century.
- Finally, there are those jurisdictions that actively encourage gambling within the state as a means of generating tax revenue and employment for the local population. Formerly, such states were interested primarily in encouraging tourism using the inducement of gambling and entertainment. Destinations such as Macau and Las Vegas exemplify this approach. However, more recently the prevalence of online gambling has created new 'hot spots' of activity (Gibraltar, Malta, the Isle of Man, Alderney, Kahnawake and Curaçao being examples). In such jurisdictions, governments seek to attract not tourists, but gambling operators with favourable tax regimes and promises of robust technology infrastructure and flexibility of approach.
VII The 'DNA' of regulatory regimes
Aside from the overall intention of regulation, there is also the question of the historical perspective of the relevant regulator. In certain jurisdictions, regulation has developed in an environment where the principal function of the regulator was to ensure that those who were involved in gambling had no connections with organised crime. In these countries, the level of due diligence on potential licensees can be extremely extensive and issues of ultimate beneficial ownership, source of funds and affiliates and other related third parties are the subject of very detailed investigation. Other jurisdictions where criminal involvement in gambling is or has been less common are inclined to take a more 'risk-based' approach, targeting resources in proportion to the perceived social harms of types of gambling. Finally, there are those jurisdictions that might be said to provide a more 'light-touch' regulatory approach. This can manifest itself in a number of ways – either in allowing ownership structures to be permitted that are more or less opaque, permitting less rigorous reporting obligations, imposing less strict rules in relation to account ownership and know-your-customer checks and so on. It may be harsh (but it may also be fair) to say that at the end of the spectrum are regimes that tacitly provide a badge of respectability to operators who wish to enjoy the benefits of a largely toothless regime. These are more gambling 'havens' than regulatory regimes.
VIII Legal control over gambling
The traditional way of controlling gambling activity was (1) to restrict those individuals who could offer gambling services and (2) to control the premises from which gambling could legally take place, in each case by providing for a compulsory licensing regime. For many years, this approach worked perfectly well and provided a good measure of control for government as well as defining in clear terms where the gambling was taking place and therefore which authority should regulate (and, if appropriate, tax) its conduct. Control of premises still provides a perfectly workable mechanism for the control of much gambling activity around the world.
However, with the advent of widely available long-distance telephony and, subsequently, remote communication such as the internet, questions arise about 'where' gambling was taking place and, therefore, which government should or could control its regulation as a matter of law.
It is important to emphasise that there is no 'right' answer to the issue of jurisdiction. Different governments have taken different approaches, each of which is logically consistent. Each of these approaches addresses itself to the basic 'building blocks' of a gambling transaction.
The first of these is the customer. Normally, one considers the customer to be an individual interested in enjoying gambling services. Of course, in some cases, the individual customer may itself be a gambling operator seeking to offset or 'hedge' its risk. However, irrespective of whether the customer is in the business of gambling itself, one can still recognise it as a distinct counterparty.
The next building block is the gambling operator, which may be defined in a variety of different ways but, for present purposes, can be said to be the organisation that is in the business of offering gambling services.
In addition, there are one or two other key activities that might be harnessed as a mechanism of control. The first of these is the location of the provider of the financial services that enables the gambling to take place. The provider of financial services is not itself in the business of gambling, but it may be said to be an accessory involved in assisting, aiding or abetting the gambling to take place. The other activity normally associated with gambling is advertising – essential to the process of bringing the customer to the gambling operator.
To demonstrate how these building blocks can be arranged to create a coherent legislative strategy (and one that can change), it is probably best to provide some examples.
IX The UK position on jurisdiction – an example of change
In English law, the general test for determining whether the English criminal courts have jurisdiction over a particular matter is known as the 'last act test'. In summary, one analyses each of the acts that constitute the criminal offence (the actus reus) and then determines whether the last of these occurs within the UK's borders. Where this is the case, the English courts will have jurisdiction to hear a case against the accused party. However, where the 'last act' takes place outside the United Kingdom, the offence is deemed to take place abroad and is normally beyond the power of the English courts. Applying that test to the concept of unlicensed gambling, the consensus view is that the 'last act' that constitutes the offence of 'providing facilities for gambling' takes place when a betting or gaming instruction is received by the gambling operator and acted upon (i.e., a bet is accepted or a decision to partake in the game is acknowledged). Until that point, no gambling has taken place at all. Based upon that analysis, the offering of gambling by an operator outside the United Kingdom could not create an offence justiciable by the English courts. However, and by contrast, were there to be an offence of advertising foreign gambling (as there was until 2014), then that offence would be completed at the point that the advertisement was effective within the United Kingdom (i.e., published and available to UK citizens) and therefore would be justiciable by the English courts even in circumstances where the operator was based outside the UK.
This approach had a number of advantages. First, it created legal certainty and showed due deference to principles of international comity. It also allowed for a measure of control because although UK citizens could freely gamble with operators abroad, there was still a measure of control in relation to advertising of those services in the UK. However, the approach also had shortcomings. It created a two-tier regime, with operators both within and without the UK being able to access the UK market despite operating in different tax regimes, placing UK-licensed operators at a competitive disadvantage. Also, the law did not fully achieve the policy objective of protecting the UK public from illegal or unregulated gambling offered from abroad.
The regime changed with the passing of the Gambling (Licensing and Advertising) Act 2014. Under that legislation, the test of whether a licence was required changed from being based upon the location of the relevant gambling equipment (i.e., the location of the gambling) to the location of the customer. In doing so, the new law sought both to level the competitive playing field from a fiscal and regulatory point of view, but also to increase the level of protection for the UK consumer. However, in taking that step, the law necessarily created a difficulty: how might one practically compel an operator who ignores the new law, and who may not have assets or individuals within the jurisdiction that can be the subject of a prosecution by the English courts? Gambling offences are not the type of offence that are normally prone to extradition, partly because they are not inherently serious enough criminal offences to fall within the ambit of most international extradition treaties, but also because the normal rules impose an obligation on the state seeking extradition to show that the conduct complained of is actionable both in the law of the prosecuting state and in the state where the accused is located (the double actionability test). So each approach to jurisdiction has its advantages and shortcomings. Consequently, the ability of the state practically to regulate a determined operator offering gambling services from overseas is actually somewhat limited. It can only really be effected by international cooperation and recognition between regulatory systems. But such mutual respect will have limitations given that some jurisdictions are openly advertising themselves as an international operating base for operators.
X The US position – a federal approach
The same types of problems can be seen with the evolution of the law in the US. The US legal position is complicated by the interaction of federal and state law. These topics are covered in more detail in chapters 3 and 30, and so the arguments are not rehearsed here in any detail. However, the federal government has specific powers set out in the US Constitution, and other law-making powers are expressly retained by individual states under the Constitution in order to provide those separate jurisdictions with a power to legislate on matters for their own citizens. It is for this reason that the prevalence of gambling in Nevada is at the opposite end of the spectrum from the general prohibitions in states such as Utah. Indeed, one of the roles of federal government is to protect the autonomy of individual states to be self-governing in such matters. Accordingly, one of the first pieces of federal legislation to deal with gambling was the Interstate Wire Act of 1961,5 which was specifically designed to prevent betting transactions being conducted across state borders. For years,6 a debate raged as to the interpretation of the Wire Act and whether it prohibited all forms of gambling on an interstate basis or only sports betting. To oversimplify a highly complex story, that ambiguity was largely resolved by the passing of the Unlawful Internet Gambling Enforcement Act 2006 (UIGEA).7 That legislation led the large majority of online gambling operations outside the United States to cease any activity within the United States. The UIGEA specifically targeted not only those offering services to US citizens but also ancillary service providers such as financial services providers.
Subsequently, a growing number of states (notably Nevada, New Jersey, Pennsylvania and others) have legislated separately for online gambling activity, and a large number of foreign operators have applied for licences to conduct online gambling within those states. But the position still remains a 'patchwork', with the chances of any federal legislation dealing with gambling remaining a distant and theoretical possibility. In May 2018, the Supreme Court ruled that the Professional and Amateur Sports Protection Act of 1992,8 which created an effective ban on betting in the US, was contrary to the constitutional freedom of states to define their own laws and rules in relation to betting. Following that decision, an increasing number of states, including New Jersey and Pennsylvania, have revised their laws to permit sports betting operations in their states, and we have seen a major shift in the dynamics of gambling in that jurisdiction.
XI Problems arising out of international trade agreements
The ability of national governments to determine their own gambling policies has also fallen into conflict with international trade agreements. These agreements once again highlight one of the difficulties in dealing with gambling law: namely, whether gambling should be considered simply as a form of commerce or whether the special considerations highlighted in this chapter mean that it is more apt to be regulated on the basis that national governments should be entitled to determine the best policy in line with the social, political and religious landscape prevalent in the state concerned.
One such international trading agreement is the General Agreement on Trade in Service, and there have been challenges to the US regime described above based upon the fact that it distorts international trade by effectively creating a barrier to those states wishing to act as exporters of gambling services to the rest of the world.9
Another example of the interrelation of trade law with social protection and fiscal and penal law is to be found in the many battles that have been fought on gambling policy in Europe. The Treaty of the Functioning of the European Union guarantees the rights of persons in EU Member States to enjoy free movement of goods and services, and freedom of establishment. National governments may create laws that derogate from those overarching freedoms, but only to the extent that they are proportionate, necessary and actually intended to achieve the effect of protecting local populations from social harm or criminal activity. Many EU Member States traditionally controlled gambling activity using laws that were directly contrary to the principles of free movement and freedom of establishment, and these laws were subject to a number of different challenges either by the European Commission or by individual operators who sought to show by one means or another that those laws were actually designed for the protection of national gambling interests (often controlled by the state) or for the protection of state fiscal revenue. Over the past 10 years, those challenges have largely been successful and, as a result, we have seen significant shifts in gambling policy across a multitude of European states. It is likely that that process will continue for at least the next decade.
XII What is a 'GAME' anyway?
We have already mentioned the fact that different activities fall to be treated either as gambling, investment or harmless entertainment depending on an often artificial and culturally based notion of what is socially acceptable. But just as different societies have different social norms or rules compared to each other, so social norms in a single society can change substantially over time. One good example of this is the notion of 'sport'. Many societies distinguish between competitive sports and forms of gambling, seeing the former as positive and socially acceptable, and the latter as socially divisive and therefore morally questionable. But the distinguishing features of what is a sport and what is a game can vary over time. Over the past decade, as electronic communications and computers have become ubiquitous, we have seen the rise of e-sports, computer games and other forms of activity that cross the boundaries. How should they be treated? Many people enjoy computer games, and many people believe that children spend far too long playing such games rather than engaging in more traditional sporting activities. How should society treat these developments? Is someone who is addicted to video games in precisely the same predicament as someone who is addicted to running marathons? Is someone who spends too much money on video games in a different position to the person who spends too much money on gambling? The issue of whether something is classified as gambling is often seen as a reason for restricting its availability, but gambling has to be seen as a form of activity that exists as part an ever-changing spectrum of leisure activities, each of which may have certain advantages and also be prone to causing certain harms.
XIII How should gambling policy be determined?
Who determines what gambling policy should be? The debate ebbs and flows between issues of pure morality, scientific and economic studies of harms and benefits and pure politics. There was a time when gambling policy in Europe and America was determined largely by reference to religious principles of what was inherently 'right' and 'wrong'. Although religious doctrines are no longer a dominant influence in Western gambling policy, public opinion and views of public morality still carry significant sway over policy makers. However, there are dangers in policy makers taking their cue from what is perceived as public opinion. In the first place, it is very difficult to determine exactly what the public thinks about a particular issue, and a danger exists that one is swayed not by what the public considers a reasonable approach but instead is influenced by powerful media forces, many of which are happy to write articles on what they wish to portray as a newsworthy world of vice and intrigue, while at the same time directing their readerships to various gambling opportunities within their own pages that generate revenue. Second, while the public can certainly express a view on their personal preferences in relation to the prevalence and types of gambling available and the amount of risk that they feel comfortable taking, there is also a great danger that behaviours that regulators seek to restrict (for example, in relation to the advertising of gambling or potential appeal to children) are not actually those that lead to harm. There is a great need for more objective studies and data in relation to gambling and its societal effects so that changes in policy are truly effective at controlling gambling. Finally, it is worth noting that there are ways of converting the desire to gamble and the chance to win into useful tools to provoke positive behaviours. A good recent example of this type of social engineering are vaccination lotteries – where those who might fear covid vaccination were incentivised to 'do the right thing' for society by the promise of free entry into a lottery for a cash prize. Others have suggested lottery or gambling schemes that are combined with regular saving schemes. Several utility providers incorporate a small prize mechanic for those who provide meter readings frequently. Harnessing gambling behaviour gives rise to promising possibilities, which should perhaps more often be explored as a means of offsetting the message that it is always bad.
XIV Concluding comments
The comments above are necessarily a highly simplified analysis of the types of factors that influence gambling law and policy across the world. The aim is to show that common issues and policies directed towards common problems created by the nature of gambling can be identified. Many states are still struggling with the challenges created by online gambling and shifts in the social acceptability of that industry. This book demonstrates how wide the spectrum of responses can be. Nevertheless, over the past 20 years, remote communication, particularly in the form of online gambling, has caused immense structural changes. The next decade will no doubt be full of similar changes and challenges, but it might be said that we have moved a long way in our understanding of the types of approach that are possible in dealing with this complex social and legal phenomenon. Increasingly, regulators are cooperating and discussing problems of common interest, be they issues of money laundering, player protection or taxation. We can expect differences to persist. But if there is a theme for the future, it is that gambling has become truly international, and governments of all types are moving to accept and address the challenges that globalisation creates, by a cooperative approach.
1 Carl Rohsler is a partner at Memery Crystal.
2 An excellent study of the history of gambling is Random Riches: Gambling Past and Present, edited by Manfred Zollinger (Routledge, 2016).
3 New Testament (Mark 15:24, Matthew 27:35, Luke 23:34 and John 19:23).
4 For example, as discussed in Professor Peter Collins' Gambling and the Public Interest (Praeger, 2003).
5 18 USC, Chapter 50, 1084.
6 The debate was reignited in 2019 when the Department of Justice changed its formal opinion on the applicability of the Act to betting.
7 31 USC5361–5367.
8 Public law 102-559.
9 In particular, see the challenge brought by the government of Antigua and Barbuda under the TRIPS Agreement.