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.
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.
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.