Getting Rich with Superpowers, Part 2: Gambling

This is the second post in our series on how common superpowers might be used to make money in the short term.  Our first post was about insider trading, and today we discuss the arguably related field of gambling.  First a little legal background, then we’ll get to the powers.

I. The Law

Throughout this post we refer only to legal gambling; obviously illegal gambling is against the law, and moreover the courts will generally not enforce an illegal gambling contract.  See, e.g., McConnell v. Com. Pictures Corp., 7 N.Y.2d 465 (1960) (“It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”)

There are several ways in which cheating can run afoul of the law.  First, winnings “earned” via cheating have been held in some jurisdictions to be unenforceable (i.e. the losing party can recover their loss from the winner). See, e.g., Berman v. Riverside Casino Corp., 323 F.2d 977 (9th Cir. 1963).  Second, states that have legalized gambling have also enacted laws criminalizing cheating.  See, e.g., Nev. Rev. Stat. §§ 465.070, 465.083.  We’ll mostly focus on Nevada law, since it has a well-developed body of law regarding gambling and cheating (no surprise there!).

II. The Powers

There are several powers that could be used to facilitate gambling, including telepathy, empathy, X-ray vision, superhuman speed or dexterity, precognition, eidetic memory, time-travel, and outright probability manipulation.  The question is, which of these, if any, could be legal to use?   We’ll start with what may be the only power that is actually legal to use.

A. Eidetic Memory

Eidetic memory would be of great use to a card counter.  Card counting has been held to be skillful play, not cheating, and a casino that allows a card counter to play must pay the player his or her winnings absent some other fraud.  Chen v. Nevada State Gaming Control Board, 116 Nev. 282 (2000) (en banc).  On the other hand, no one has a right or property interest in gambling at a particular casino, and a casino can bar a suspected card counter from playing.  Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000).  Given that even a perfect card counter will require a hefty bank roll and a long stretch of play in order to realize a significant advantage, this approach, while legal, is far from a guaranteed thing.

B. Empathy

Empathy is where we begin to enter a grey area.  Arguably, reading someone’s emotions is akin to finding a gambler’s tells, and empathy is simply a more precise, direct way than, e.g., looking for facial cues or nervous tics.  Depending on how the power works, it might run into invasion of privacy problems, but some versions of the power (e.g. pheromone detection) likely wouldn’t as they make use of “broadcast” signals.  There is enough uncertainty left in reading an opponent’s emotions that it couldn’t be construed as knowing the outcome of the game, which sets empathy apart from many other powers.

C. Precognition and Time-Travel

Precognition and time-travel are, alas, probably a fraudulent act within Nev. Rev. Stat. § 465.070(5), which prohibits, “[placing] or [increasing] a bet after acquiring knowledge of the outcome of the game or other event which is the subject of the bet, including past-posting and pressing bets.”

Now, the real crux of the matter is the meaning of the word “after.”  A precog clearly places a bet “after” acquiring knowledge of the outcome, but the issue is less clear for a time-traveler.

Suppose the time traveler leaves the present (t1) and goes to the future (t2) to learn the outcome of the game, then returns to the past (t0, even earlier than t1) to place the bet.  Has the time-traveler placed the bet “after” acquiring knowledge of the outcome?  Common sense says yes: from the perspective of the time-traveler, the bet was placed after the outcome was known.  The time-traveler could make the argument that, objectively, the bet was placed before the outcome was known, but believe it or not that level of semantic hair-splitting is frowned upon by judges.

Of course, as with Biff Tannen’s scheme in Back to the Future, Part II, proving that someone is cheating by traveling through time is a tough sell unless time-travelers are well-known to exist.

D. Telepathy and X-ray Vision

Telepathy and X-ray vision are where we really cross the line into cheating  because these powers violate the rules of the game.  There’s no meaningful distinction between peeking over a player’s shoulder and using X-ray vision to look at their hand, and telepathy presents similar problems as well as invasion of privacy issues.  This may well fall under Nev. Rev. Stat. § 465.083, which simply makes it unlawful for any person to cheat at any gambling game.  Somewhat surprisingly, this law has been held not to be unconstitutionally vague, as we’ll discuss in more detail in a moment.

Failing that, these powers also likely fall under § 465.070(2), which prohibits “[placing], [increasing] or [decreasing] a bet or … [determining] the course of play after acquiring knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game or which is the subject of the bet.” In most games, reading an opponent’s mind or viewing their hand is a great example of “acquiring knowledge, not available to all players, … that affects the outcome of the game.”

E. Superhuman Speed or Dexterity, Probability Manipulation

Superhuman speed or dexterity could be used in games like craps, either to place the dice in a particular position after rolling them or to roll them such that they are guaranteed to end up in a particular position.  There are actually cases that deal with these tactics, which hold that they are a form of illegal cheating.  Skipper v. State, 110 Nev. 1031 (1994) (holding that law criminalizing cheating was not unconstitutionally vague as applied to “dice sliding” in craps).

Those same cases would also appear to apply to probability manipulation.  “A skilled dice slider such as [the defendant], surreptitiously and contrary to the rules of the game, alters the probable outcome of a throw and drastically increases the chances of winning certain types of bets on the craps table.”  Skipper, 110 Nev. at 1035 (emphasis added).  Even though someone who manipulates probability may not even touch the dice (instead betting on someone else’s throw) or may play a game like roulette, the same logic would seem to apply.

III. Conclusion

There do not seem to be very many superpowers that could be used to legally and efficiently make money via gambling.  Many of these methods are hard to prove (e.g. precognition, time-travel), but they are nonetheless probably illegal.  Of course, many superpowers could be used to win bets of an altogether different kind, for example Wolverine betting on himself in boxing matches in X-Men, but it’s hard to make really serious money that way without arousing suspicion: eventually people catch on that betting against you is a bad idea.  It may actually be easier for a superhero to make money legally via the stock market than via gambling.

31 responses to “Getting Rich with Superpowers, Part 2: Gambling

  1. In the citizenship post, one argument was that someone who time travels from the future is not a citizen because his birth has not taken place yet and he is not a citizen until his birth. But here the argument is that a time traveller is cheating because he made the bet after learning the outcome, and “after” can be interpreted to apply from his perspective and not the perspective of an outsider.

    Couldn’t the same reason be applied to citizenship, thus concluding that the time traveller is asserting citizenship after he has been born (from his own perspective) even though from the perspective of an outsider his birth only happens in the future?

    It would seem strange that “before” and “after” should be interpreted in contradictory ways depending on which interpretation is most disadvantageous to the time traveller.

    • The citizenship argument and the gambling argument work a little differently. Yes, the time-traveling citizen subjectively believes that he is a citizen of the country in question. The argument is that the future version and the past version of the country are not inextricably connected, assuming that history can be altered, so the past version should not be forced to recognize the laws and judgments of the future version. I’m not saying this is necessarily the view a court would adopt, just that unlike the past->future time traveler it isn’t obvious that the time-traveler could claim citizenship based on his or her home time.

      Another way to look at it is that the time-traveler is trying to claim “retroactive citizenship” based on their future citizenship. That’s not how it works for naturalized citizens, so it seems a little strange to let it work for time-travelers. One could argue that if the time-traveler wanted to be a citizen at time t1, then he or she should have traveled further back to time t0 and become a naturalized citizen by t1.

      Part of the problem is that there is no specific “no retroactive citizenship” statute to compare to the gambling statute. The citizenship argument is based on general principles, and it’s entirely possible that a court would go the other way, since otherwise the time-traveler would be stateless and likely unable to claim asylum or refugee status, unless he or she was fleeing persecution via time-travel.

      • There were several different arguments made about time-travelling citizenship rules. You’re talking about a different one than I am. Of course if the future version of the country and the present-day version aren’t necessarily connected, citizenship in one doesn’t give you citizenship in the other.

        But I was referring to the specific argument made by a commentator: “Birthright citizenship is extended to all persons who have been born within the territory of the United States. If you travel backwards in time to a time period prior to your own birth, then the citizenship is lost, because you have not been born in the territory of the United States (yet).”

        Wouldn’t that particular argument be inconsistent with claiming that a time-travelling gambler found out the result before making the bet?

      • Martin Phipps

        We’re talking about two different types of time travelers here. If I am a U.S. citizen and I travel to the future and return then of course I am still a U.S. citizen. If I am a U.S. citizen from the future who, say, hasn’t even been born yet then they literally don’t know me and have no records of my existence. I could bring a passport with me but they would truthfully say it was not made in the present day U.S. and is, therefore, a forgery.

        Here we are talking about a present day time traveler traveling into the future to get the outcome of the bet and then returning to the present to place the bet. The semantic argument is that if you learn the outcome of the bet after the fact then it is not cheating and yet clearly you traveled into the future with the intent to get the knowledge.

        Now what if you are a time traveler who goes back in time and places a bet? Then I think a different argument has to be made. Surely when you are in the future and you learn the outcome of the bet you are “acquiring knowledge, not available to all players” but you haven’t done anything illegal yet. I think that it would be simpler to simply make it illegal for time travelers to gamble. That way they wouldn’t have to prove that you had in fact cheated.

  2. On time travel: the wording of the statute prohibits “[placing] or [increasing] a bet after acquiring knowledge of the outcome.” To me, the phrasing of that sentence implicitly defines it from the perspective of the person placing the bet, not that of an outside observer, because it refers only to the subject’s own actions and knowledge. So I read it as being about the bettor’s intent and state of mind. To split hairs about the objective definition of “after” would therefore be ignoring the intention of the law, so I agree that a judge wouldn’t be likely to go for it.

    Whether the same logic applies to the citizenship question from before would depend on the specific phrasing and intent of that statute.

    • The real problem I see is proving that somebody has come back from the future with knowledge of the outcome of the bet. The actual cheating, arguably, hasn’t occurred yet from the point of view of the court so it would be a question of holding the suspect accountable for something that he did in the future and not in the present. Maybe you have to arrest him after he appears in the future to obtain the knowledge in the first place. Of course, that introduces causality problems because now he can’t return to the present to place the bet in the first place.

  3. Just to pick a nit, doesn’t a strict reading of that anti-cheating law make it illegal to raise on a Royal Flush? And doesn’t the rule about obtaining information that teh other players don’t have have to exclude information your allowed to have by the rules of the game (like your hand)?

    • “acquiring knowledge, not available to all players” would have to mean acquiring knowledge about another player’s hand. Everybody knows the content of their own hand.

      Poker is a of a different situation anyway. You can raise on a royal flush but the opponent can always fold in which case you don’t get any more money out of him.

    • If it’s illegal to raise on a royal flush, it’s illegal to raise on any other hand, either, and poker just became a pure game of chance instead of a game of chance and skill.

    • Both of these are fair points, and it’s something that is addressed in the court cases on anti-cheating laws. The courts have basically held that the laws have to be read in the context of the particular game:

      “[W]e interpret the current cheating statutes to proscribe the alteration of the group of characteristics which identify and define the game in question. The attributes of the game — its established physical characteristics and basic rules — determine the probabilities of the game’s various possible outcomes. Changing those attributes to affect those probabilities is a criminal act.” Sheriff v. Martin, 99 Nev. 336, 341 (1983).

      This kind of thing naturally invites “void for vagueness” arguments (i.e. does it pass Due Process to expect someone to know what, exactly, the rules of the game are such that cheating at it is a crime?). And the courts have indeed held that, in some cases, the laws were unconstitutionally vague with regard to particular games. See Lyons v. State, 105 Nev. 317 (1989) (holding the anti-cheating law unconstitutionally vague with respect to “handle popping” of slot machines; NB: the law was later amended to make the prohibition against handle popping clear). But in most cases (e.g. card-crimping, dice sliding) it’s pretty clear that the activity in question was against the rules, so the courts were comfortable holding that it was criminalized.

  4. Okay, so what does the law say about passive powers? What if a telepath were to say that his opponent in poker was “broadcasting” his thoughts? Or if someone were to obtain flashes of the future in the middle of a game is it illegal for the person to act on his knowledge? What if the suspect were to describe these abilities as “skills” analogous to a good memory or the ability to look at a person’s face and know what they are thinking?

    I think, because it would be impossible to prove a crime, the casino would simply bar the telepath or precognitive from playing.

    • Well, the law doesn’t really say anything on the topic exactly, but it would be easier to argue that passive telepathy doesn’t violate privacy, as we’ve mentioned. That doesn’t mean using passive telepathy isn’t cheating, especially if it can be turned-off or ignored. Just because it’s a method of cheating that most people can’t use doesn’t mean it isn’t cheating.

      It would also be hard to argue that passive telepathy or precognition are merely a skill, since they are unavailable to most players no matter how hard they try to “hone” that skill. These are squishy arguments, I’ll admit, but the anti-cheating cases are all pretty squishy.

      Yes, proof would be difficult, and the likely solution would be to treat them like a card counter or other legitimate player who was simply bad for business.

      • What about anti-discrimination laws? If we lived in a world where one person in twenty, say, were telepathic then could they be a protected group? Could a casino face a class action suit from telepaths if enough of them were barred from playing? It seems to me that they could argue that it is not their fault that normal people can’t read minds. I suppose a telepath could argue that an ordinary person who could not read minds was disabled. This might not be a good strategy: ordinary people might not appreciate the comparison.

        What about in real life? If somebody were a professional poker player who made a lot of money playing in tournaments and a casino recognized him would they be likely to bar him from playing or would the player say he had the right to be there? I know you said the casino could bar anyone they liked but a high profile player might accuse the casino of hurting his reputation by not allowing him to play.

      • @Martin, A professional poker player wouldn’t get barred from a casino because of the way casinos make money off poker vs how the make money off table games and slots. When you cheat at table games and slots, you are taking money from the casino. When you cheat at poker, you are cheating another player. Regardless of who wins a poker hand, the casino takes their cut called the rake. So in the case of the pro player he can fleece as many people as he wants with his skills because the casino makes money each hand regardless of the outcome. If it became known, however, that the pro player was cheating, the other players would have grounds to sue for their losses.

  5. Telekinesis raises a question about the measure of proof required.

    Suppose a known telekinetic is permitted to enter a game of dice subject to a contract that he will not use his powers and gets very lucky. The house then refuses to pay up because they claim he broke his contract.

    Perhaps more interesting, suppose a fraction of the population was known to have telekinetic powers but that there was no test for it other than seeing them do it. A person enters a game of dice from which telekinetics are banned and is very lucky. The house refuses to play because he had been impossibly lucky and therefore “must” be a telekinetic.

    • Well, telekinesis might be provable, actually: high-speed, high-quality camera footage or sensors in the dice might be able to show that the dice were acted upon by an outside force.

      Regarding the second case: since no one has a right to gamble in a particular casino, the casinos can bar anyone for just about any reason (e.g. obviously something like racial discrimination isn’t allowed). So if someone is doing really consistently well, the casino might not care whether it’s telekinesis, skill, or luck and bar them regardless.

  6. There’s one more refrain in the time-travel area. Person A who normally doesn’t play the state lottery because it’s a sucker bet, travels into the future and learns that he did, in fact, win the lottery, but no other details. Upon his return to the present, he buys a ticket. (You can build this scenario with precognition, too.) What result? (Ignoring problems of evidence, of course)

    • Hmm…lotteries are a different legal area, I think, and I haven’t yet researched how lottery anti-cheating laws are written. I’ll probably come back to that.

      • James Pollock

        I would think that the thrust of anti-cheating laws with regard to lotteries (state or otherwise) would be focused on two things: preventing tampering with the equipment that produces the numbers, and preventing tampering with the officials who operate them. Since most (if not all) states that have state-run lotteries prohibit private ones, they don’t have to set rules that cover privately-run gambling establishments.

      • I suspect you’re correct, but I wonder if, for example, there are laws that prohibit placing a bet on a lottery after learning the outcome (Nevada’s law appears to apply only to casino-type gaming). In the real world that’s prevented by the way tickets are sold, but a time-traveler could circumvent that easily enough.

      • James Pollock

        They stop selling tickets an hour before the drawing (you can buy tickets for next week’s drawing, though) Buying a ticket after the drawing would require tampering with the computer system and/or complicity by someone who can do things the computer normally wouldn’t let you do. I’m fairly sure the enabling statutes for the lottery permit the state to invalidate tickets sold under improper circumstances.

  7. One other time travel idea. The statute “prohibits, “[placing] or [increasing] a bet after acquiring knowledge of the outcome of the game or other event which is the subject of the bet.” How about placing a bet, going into the future and seeing if you won. Then if you lost, going back to before you placed the bet and either telling yourself not to place said bet or having some third party tell your past self not to (for universes in which meeting your past self destroys the world, etc.). In the case of a win, hurray! In this scenario, you are neither placing nor increasing a bet after gaining knowledge of the outcome – you’re retroactively declining to place a bet.

    The other thing I was thinking about was Superman. Say he’s playing poker, and they’re using a deck of lead-lined cards, so X-Ray vision won’t help. Telescopic vision could let him see the reflections of his opponents’ hands in their eyes, or in some interpretations may even let him see the microscopic differences in the printing on the backs of the cards. Also (and this goes for the Flash, as well), he may simply operate quickly enough that he can see the order the cards are being shuffled into, thereby (with a little card counting) knowing what cards everyone will get. These are simply much more powerful versions of the same senses everyone else has – “plain sight” for superman is a little different, but there it is. As a further wrinkle, say the poker game consists of Superman, Supergirl, Powergirl, and Jimmy Olson. Having the same senses, this information is available to all players but one – how does that affect whether or not it’s cheating, especially when Mr. Olson loses all his money and it’s an all-Kryptonian card game (can the same action be cheating at one point in the poker game and not later, simply because one player has left? How about real-world, with a mostly-blind player, who cannot see his opponents to read their cues)?

    • If we’re going by real world physics then I’m fairly sure that x-rays wouldn’t allow him to see what the cards are. If we’re going by DC physics then Superman’s powers don’t (to the best of my limited knowledge) seem to allow him to see through cards to the print on the other side anyway. Of course there are plenty of other ways he could use his powers to cheat as you mentioned.

  8. Someone with super-speed or heightened perception and agility could potentially use those powers to win at Slot Machines- being able to see the symbols as they’re spinning by in a way that unenhanced humans can’t, and stopping the reels with precision timing. Would the dice-sliding statutes apply to that? It may be against the intention of the game to turn it from a game of luck to a game of skill, but I would argue that the inclusion of the ability to stop the reel is a mechanism provided by the manufacturer to imply that there is an element of skill to the game already.

    • Slot machines are all electronic now, and the payouts are computer-controlled. A person able to perceive tiny amounts of electrons flowing in a circuit might be able to tell if a machine is ready to pay… but they’d probably have to have a degree in electronics engineering as well as superhuman senses to make it pay off… and a person able to remotely sense electronic flows would be scooped up to work in espionage.

  9. I’d like to ask about spinning this post off into the world of pro sports (hopefully I’m not bursting the bubble on an already-planned post in this series). A running gag in the X-men franchises has been to show the characters playing sports with the restriction of “no powers”. Given the huge salaries pro athletes can make, how about considering using superpowers in professional sports as an avenue to get rich? How would the climate against performance enhancers view superhuman strength, speed, agility, and invulnerability (particularly if gained artificially instead of through DNA)? What about the unfair advantage of knowing what pitch was about to be thrown or that the quarterback was planning a fake pass because of telepathy?

  10. What about a time traveller that does not learn the outcome of the event but gets better odds. Here’s an example. The time traveler goes into the future and asks somebody to write down the correct winner of the superbowl in three envelopes and the loser in the fourth. The TT selects an evelope at random and then travels back and bets on that team. He cannot be said to truly know who the winner is. He has better odds of winning. Somebody who performs and extensive analysis of the teams also has better odds of winning, but that would not be cheating.

    • Violet Macavity

      This is even the case with the original scenario presented, really. Simply by returning to the past and placing a bet on the race the time traveler slightly alters the course of events by the butterfly effect. So while the outcome of the competition is extremely likely, it is by no means guaranteed.

      The only difference between this and the envelopes method is that of degree of uncertainty.

  11. It seems that most of the arguments here are based on the assumption that the superpowers in question are 100% reliable. Say, for example, that a telepath was able to accurately read the thoughts of another poker player only half the time. This would clearly be an advantage, but would it be more of an advantage than the skill at reading other players exhibited by top poker players? (Indeed, how do we know that such players are not actually using some form of imperfect telepathy that they are themselves not aware of?)

    Thus, two issues are raised: (1) Whether a superpower has to be 100% accurate to qualify as cheating and (2) whether a player has to be aware of their own ability for it to be cheating?

    I know from my own experience that, at least anecdotally, I seem to win more at gambling when I am in a good mood and feeling energetic. This includes winning at games with no element of skill. Perhaps my feelings are reflecting greater energy of some kind which is subtly influencing the game or my choices in some way.

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