In an article that will be published in the next issue of Gaming Law Review and Economics that Bluff Magazinepreviewed, Professor I. Nelson Rose (pictured) of GamblingAndTheLaw.comsays that “bad actor” clauses could be permitted since gambling is considered a vice. That opinion is in contrast to a theory put forth by Laurence Tribe, who said that bad actor clauses could be unconstitutional.

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According to Bluff, “Rose goes on to explain how gambling falls under ‘vices’ and is therefore subject to the ‘state’s police power,’ which is to protect the ‘health, safety, welfare, and morality of its citizens.’ Rose continued on, saying, ‘state’s police power often trumps constitutional rights,’ which allows the state governments to ignore Federal law and even the Constitution in some instances.”

As Rose pointed out, “Gambling implicates no Constitutionally protected right; rather, it falls into a category of ‘vice’ activity that could be, and frequently has been, banned altogether.”

Bad actor clauses, depending upon how they’re written, could prevent sites that serviced the US market for real money post-UIGEA from receiving licenses. The same could hold true for any rake-based site still in the US after Black Friday.

In California, the holy grail of online poker markets due to its population, one bill’s bad actor clause contains language that would make software and player lists tainted regardless of ownership, making entry for sites like PokerStarsand Full Tilt Pokerpotentially problematic despite their recent purchase by Amaya Gaming.

Tribe (pictured) concluded about the bad actor clauses, “Taking all these infirmities in the bills into account, I believe that they should not, and would not, survive Federal Constitutional attack.”

As Poker Players Alliance Executive Director John Pappas argued, the industry shouldn’t be focused on whether “bad actor” clauses could withstand a Constitutional challenge. Rather, as he said, “I think it is past time to put the ‘bad actor’ language to rest and have the industry work toward passing bills and not throwing their competitors under the bus.”

When asked what states will be the next to pass legislation regulating internet gambling within their borders, California and Pennsylvania tend to be the two top-of-mind responses among those in the industry. The California legislative calendar ends on August 31, so we’ll know more in the very near future.

Visit PocketFives’ California poker community for the latest news and discussion from California players.

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