The Missing Link in Gaming Law
By Anthony Cabot, Lewis & Roca

June 2007 marks my 25th anniversary of practicing gaming law. This is unremarkable in itself, but does provide an opportunity for some reflection. I retain a passion for my chosen profession. Even now, I find aspects of the practice new and often challenging, and I still enjoy the interaction with my colleagues, clients and those in government service.

What has sustained this interest over the years is undoubtedly the interdisciplinary nature of practicing gaming law. Not only does gaming law touch upon other areas of law, such as Constitutional law, Native American law, and admiralty and international trade, it also crosses paths with sociology, religion, mathematics, economics and engineering, to name only a handful. Gaming attorneys have the opportunity to assist clients virtually across the globe, learning about different legal systems and cultures in the process. Engaging in these diverse opportunities while gaining experience and competency makes gaming law a unique profession.

I also appreciate that the practice of gaming law is very young. New issues, policy concerns and challenges redefine the nature of gaming law on a regular basis. For example, 20 years ago no one would have suspected the intersection between Native American rights, the casino industry and gaming law. Likewise, 10 years ago the idea of interactive gaming, its impact on the gaming industry, and the resulting political and policy debate was remote at best.

As the International Masters of Gaming Law enters its fifth year, we are only beginning the age of serious academic gaming and gaming law study. We have the commitment of John Marshal Law School to produce the fifth Gaming Law Symposium issue. While we are on the right path, other legal disciplines have hundreds of volumes. Unfortunately, gaming law is only taught at a handful of law schools, despite the enormous impact it has on the economies of many nations and local jurisdictions.

We need to look at this immaturity as an opportunity, both as professionals and as an organization. It provides us the opportunity, as professionals, to redefine our practices in response to new and often exciting challenges, for example, learning computer technology to better represent clients in the application and approval process. Perhaps more importantly, as an organization, we can profoundly shape the public pol0icy debates that will help define gaming laws for generations to come.

An area of public policy worthy of additional study and debate is how - and whether -ethics should impact gaming law and policy. This is different than legal ethics and gaming law. Some strides in application of legal ethics to the gaming law practice have occurred with the help of Professor Martha Moore from Cooley Law School, who has spoken at IMGL and ABA Gaming Minefield conferences, and has provided articles for this magazine.

How business ethics should be reflected in gaming law and regulation is very different. If we assume that people should have the right to gamble, does the legal gaming industry have any ethical obligations to those people or society in general? Do we, as industry participants, only need to operate under the assumption that we are a legal business dedicated solely to maximizing profits? This perception is reinforced by regular media coverage of billion-dollar deals, the escalating net worth of gaming companies and the opulent lifestyles of their owners. Gaming is, of course, a business, and successful companies and individuals benefit financially from being better competitors and innovators. But is there a point were profit maximization should give rise to ethical considerations? This may not be as simple as understanding that a line needs to be drawn between providing recreational opportunities to the public and knowingly taking advantage of problem gamblers. It also goes to the ethical treatment of all patrons. For example, as game tracking technology becomes more prevalent, is it ethical for a casino to use the technology to determine when to shuffle in Blackjack, so as to avoid circumstances where the deck favors the player?

Ethics also involves political and economic issues, such as the proper boundaries of lobbying and efforts to disrupt competitive markets. For example, when - if ever - is it appropriate for a casino licensee to provide derogatory information on a potential competitor who is seeking a license? Or for casino owners to largely finance the campaigns of state and local politicians?

We can deal with these issues on a jurisdiction-to-jurisdiction basis or an issue-to-issue basis, but real benefits can be derived from a serious study of the ethical issues facing the industry globally. By doing this, we can better define the meaning of business ethics in the gaming industry and how universal principles may apply. From there, study and debate may ensue on specific issues and whether they individually are better addressed by the industry or by government intervention through regulation.

Seemingly, this may be a better approach than simply dealing with these issues on an ad hoc basis in different jurisdictions. The gaming industry is an exciting and vibrant industry that provides great benefits for many people. The preoccupation with wealth will wear thin with the public if the industry is not otherwise an exceptional corporate citizen. Its continuing viability may be dependent on it being an ethical industry, not just in show, but in fact. This effort can benefit from serious and sincere introspection.