LUKE BURBANK, host:
There was a fascinating hearing on Capitol Hill this week concerning online poker and if it is or isn't actually gambling. The hearing was fascinating because actual U.S. congressmen spent a lot of time asking an actual poker professional weird questions like this.
Representative LAMAR SMITH (Texas, Republican): In the last James Bond movie called "Casino Royale"…
Ms. ANNIE DUKE (Professional Poker Player): Yes.
Rep. SMITH: James Bond draws an inside straight flush.
Ms. DUKE: Mm-hmm.
Rep. SMITH: What are the odds of that occurring?
BURBANK: The answer was something like 2 percent. The Republican asking the question was Lamar Smith of Texas. The poker player answering was Annie Duke, a Columbia-educated mother of four who happens to be one of the best female players of all time.
Annie Duke's argument is that online poker is a game of skill. It's not a gamble and, therefore, it shouldn't be illegal which it is right now thanks to a bit of clandestine lawmaking from Congress last year. So is it gambling? Well, let's ask our next guest.
Charles Nesson is the William F. Weld professor of law at Harvard. He defended Daniel Ellsberg in the famous Pentagon Papers case. Lately, though, he's been lobbying Congress to reverse the ban on online poker.
Hi, there, Professor Nesson.
Professor CHARLES NESSON (William F. Weld Professor of Law, Harvard Law School; Founder and Faculty Co-Director, Berkman Center for Internet & Society): Hello.
BURBANK: Thanks for coming on. Were you glued to your C-SPAN this week watching this hearing?
Prof. NESSON: Well, I did see parts of it.
BURBANK: I mean, it was interesting stuff, though, right?
Prof. NESSON: Absolutely.
BURBANK: Because there was this sort of, like, kind of legal aspect being talked about, but also a kind of philosophical - and also, there was a lot of poker talk which I enjoyed as a poker player.
(Soundbite of laughter)
Prof. NESSON: Yes, absolutely.
BURBANK: Well - I'm sorry.
Prof. NESSON: Well, I was just going to say I thought the testimony by Joseph Weiler, who was a colleague of mine here for many years and is now a professor at NYU, about the international situation with poker and how out of step the United States is with it and how greatly it's jeopardizing our world trade relations was totally fascinating.
BURBANK: Let me just ask you, is poker a game of skill or a game of chance?
Prof. NESSON: Poker is a game of two skills; there are two skills in poker. One skill is the skill of making good bets, good investments, positive expected value bets instead of bets that have a negative expected value; that's a real skill.
The second skill is being able to discern your opponent's strategy and story without disclosing your own; those are the two. You put those two together and you have a dynamite poker player, or a dynamite lawyer, or a dynamite businessman - you have dynamite.
BURBANK: Well, let's say for the sake of argument that it is a game of skill and that there's, you know, it's not a sort of buying a lotto ticket online, it's not the equivalent of that. Isn't the real issue that the people are betting money? I mean, why does it even matter if skill is involved?
Prof. NESSON: Well, money is the currency of the economy; it's life. And so the idea that one makes an investment in the possibility of a return in the context of a game shouldn't be any more disturbing to people than doing it in real life. In fact, the opportunity to teach people how to do it well in the context of a totally fascinating game seems like an opportunity rather than a loss.
BURBANK: I mean, would it be okay if people were playing scrabble online and betting on it? I mean, that's a game of skill as well.
Prof. NESSON: You bet, absolutely. And in fact, you can play poker with scrabble cards. There's a company starting up called Alpha-bets(ph)…
(Soundbite of laughter)
Prof. NESSON: …in which you get your two cards down, but instead of them being an ace 10, they're an H Z.
(Soundbite of laughter)
BURBANK: Is that a 7-2 off suit in H Z?
Prof. NESSON: Yes, just like that, but then there's a three-card slot, and turn, and the river. And the showdown is who has - can make the highest scoring word. Double for six-letter words, triple for sevens.
STEWART: Oh, my grandmother would have been in heaven - well, she is already in heaven. But, man, she loves scrabble and she also likes poker.
BURBANK: Maybe that's what she's doing in heaven…
STEWART: Maybe.
BURBANK: …right now, playing scrabble-poker.
Professor Nesson, you teach poker in your law classes at Harvard. How is it applicable?
Prof. NESSON: Well, just think of a lawyer sizing up a witness. Is the witness telling you the right story, or is the witness telling you the wrong story?
Poker is a game about putting yourself in situations, sizing up situations and then making you play. It's - I teach it to my students particularly because it's a marvelous game for teaching young lawyers how to see situations from the other person's point of view.
The key in poker comes - when you start running poker, people are typically buried in their cards, you know, trying to figure out is this a two pair or is that better than three, and that sort of thing.
BURBANK: Right. They're sort of just worrying about the cards in their hand.
Prof. NESSON: Right.
BURBANK: Do I have something good?
Prof. NESSON: A moment of transition comes when you look up from your cards and what you're most interested in is the play around the table; the context in which your cards exist. Now, you're playing poker. That's what lawyers need to do: They need to be aware of the witness and the whole courtroom environments in which it happens, and the whole social societal environment in which the courtroom happens.
BURBANK: When did you start playing poker?
Prof. NESSON: I guess I really started with poker in 1981 when I programmed five-card draw Jacks or Better as a hobby computer project and that got me into the bluffing algorithm. I've never been an intense poker player; I'm a social poker player, but I love the game theory of it. I love the mathematics of it.
BURBANK: And did you notice an improvement in your lawyering on the other side of that, you know, getting into poker?
Prof. NESSON: I would say it's not just lawyering; it's thinking. It's actually a way of training flexibility of thought. You become a more flexible thinker. It's hard - I - my hypothesis is that poker players have a harder time hanging on to absolutes than people who don't play.
BURBANK: So you're sort of - your mind becomes a little less rigid because one of the things you learn in poker is that you think you've seen it all and yet you haven't; something can always happen.
Prof. NESSON: Perfect. Absolutely.
BURBANK: Would you concede that some of your interests in trying to sort of lobby for changing this law or at least arguing on the side of poker is just that you have a real affection for the game?
Prof. NESSON: Absolutely. I mean, the thing that got me out of my seat was when I suddenly - well, two things. One was I loved to play online poker - just casual, low stakes, play it typically before I go to sleep at night with my spouse doing a crossword puzzle and sometimes it gets better than that, but…
(Soundbite of laughter)
BURBANK: Hey, come on. This is still NPR, Professor Nesson.
Prof. NESSON: Right. Then all of a sudden, wham, I couldn't do it. This unlawful Internet Gaming Enforcement Act got pushed through the Congress as a rider to a port security terrorism bill - never having gone through a community. And whap(ph), suddenly, the company shut down.
BURBANK: Well, we're going to see what happens in Congress. It would seem to be a big step forward for advocates for changing this law that it's even getting heard at the table in Congress, and that you have folks like John Conyers and Barney Frank actually stepping up to say, we should take a look at this. And certainly we'll be following it. I'll be personally following it, Professor Nesson.
Charles Nesson is the William F. Weld professor of law at Harvard. He was here talking to us about his love of poker and why it's, in fact, not just a gamble. Thanks, Professor Nesson.
Prof. NESSON: All right. Thank you.
STEWART: Coming up on THE BRYANT PARK PROJECT, the sticky wicket of international business ethics.
BURBANK: And Stephon Starbury Marbury, remember that name. It's coming up on THE BRYANT PARK PROJECT from NPR News.
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