Slots & Sovereignty

It’s a video poker case.

Over at SCOTUSblog, they’re betting that that it is taken up by the Supreme Court. I won’t (meaning, I can’t) handicap the odds. The case concerns Jimmy Martin and his company, Lucky Strike, which have sought to enjoin enforcement of two South Carolina statutes criminalizing certain “device[s] pertaining to games of chance.” The district court declined to hear the case, dismissing the federal constitutional challenges to the two South Carolina statutes regulating video poker, on the ground that Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), mandated abstention. The Fourth Circuit Court of Appeals reversed. “Because resolution of these challenges neither requires a court to adjudicate difficult questions of state law, nor disrupts state efforts to establish through a complex regulatory process a coherent policy on a matter of substantial public concern,” the court of appeals held, “this case falls well outside the narrow category of cases to which Burford abstention may apply.” But that’s only 2/3 of the story.

Judge Wilkinson dissented. He wrote:

My friends in the majority … refuse to allow the state courts to undertake the delicate task of distinguishing between lawful and unlawful games. Because South Carolina’s gaming statutes justifiably call for a machine-by-machine determination of legality, the majority’s notion that it somehow can interpret “games of chance” in bulk, without disrupting South Carolina’s enforcement scheme, rides roughshod over the scheme itself and the principles of federalism it purports to observe.

This clash over what federalism requires, or what it does not allow, reminds me of a case I blogged on earlier. Both cases concern preliminary, federal court decisions on state regulatory matters. Both are also superb pieces of writing, IMveryHO.

It’s been said that a good lawyer knows the law, while a great lawyer knows what the law will be (i.e., meaning, sometimes, that the lawyer knows the judge). Great, good or just plain average, I bet that this case doesn’t get snatched.

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