Rolling Dice

What Does the Word Mean?

There is currently a case in front of the 3rd U.S. Circuit Court of Appeals regarding sports betting in New Jersey. I heard a great discussion of it on Bloomberg’s law podcast (which I am addicted to), but they roll the stories off the web site after just a couple of days, so you will have to search iTunes if you want to listen. Here is a brief description that doesn’t do the nuance justice, but hopefully I will here.

A good portion of Tuesday’s oral arguments before the 3rd U.S. Circuit Court of Appeals focused on the meaning of the word “authorize,” and whether New Jersey did that in striking the betting prohibitions.

There is currently a federal law that prohibits states from “authorizing” sports betting. New Jersey, like most states, has a law that prohibits sports betting. So far so good. But NJ recently amended the law to reduce the prohibition, carving out exceptions for casinos and horse racing tracks. The Feds sued because this is the state “authorizing” sports betting, in violation of the federal law.

My Take

This is where it gets interesting. The Feds say that “prohibiting” and “authorizing” are for specific places, defining it generally as less than 50% of the state. If you are “prohibiting” 90% of the state, you are really “authorizing” 10%. If you are “authorizing” 90% of the state, you are really “prohibiting” 10%. So the New Jersey carveout is an authorization, and therefore in violation of the federal law.

NJ counters that “authorizing” is if you have licenses or certifications for places that fit a description in the law. “Prohibiting” is when you have criminal or civil penalties for places that fit a description in the law. So by removing the prohibition from casinos and race tracks, they are not authorizing anything. The license the casino or track already has to be a casino or track is not changed. And there is no requirement for an additional license to allow the sports betting at these establishments. It is automatic. There are penalties for having sports betting anywhere else, but that is a “prohibition”, not an “authorization.”

What struck me is that you have two attorneys/former Solicitor Generals of the United States arguing this in front of a panel of Appellate judges, who will be the ones to decide what these two words mean. Is the federal definition of “authorization” and “prohibition” correct (50% threshold)? Or are New Jersey’s definitions correct that they are about licenses and penalties?

This is so different from human factors, where we would find a representative sample of prospective users (casino operators, NJ voters, people who might bet on sports in NJ) and find out how they use the words and what the words mean to them. In this case, the decision is being made by people with a completely different set of experiences from the users, but it is the way the legal world works.

Your Turn

What do you think? Is our legal system crazy to decide this way? Should they implement some user centered design instead? Let us know.

Image Credit: OpenClips

3 thoughts on “What Does the Word Mean?”

  1. Interesting points made, however, I have to question

    “This is so different from human factors, where we would find a representative sample of prospective users (casino operators, NJ voters, people who might bet on sports in NJ) and find out how they use the words and what the words mean to them. In this case, the decision is being made by people with a completely different set of experiences from the users, but it is the way the legal world works.”

    This might be the case prior to system being put in place e.g. user groups to define usability etc, but very much aligned to incident analysis and discussions concerned errors and mistakes that have been made. When determining causality we are heavily biased by our own views and experiences. Dekker’s view of “errors” being defined post event because at that point you know what the outcome is and therefore what was ‘right or wrong’, rather than prior to the action knowing what might happen and trying to make that decision. (‘Just Culture’ by Dekker is a great book on this subject).

    So in answer to your question, whilst it might be a utopian position to use group decision making for legal decision making, I am not sure it would be possible as you have to ensure that the population you are sampling is broad enough to capture all view points and the population also needs to recognise that the decision is ‘final’.

    In criminal cases in the UK, this is called a jury of your peers so it is already in place.

  2. @Gareth – good point. But I think even a halfway decent sample would be more user-centered than a panel of Appellate judges. We have a jury of ones peers for lawsuits here as well, but not at the Appellate level. The higher you go, the less representative I suspect the judges are.

    Check out next week’s followup article on the words “appropriate and necessary” for the EPA, the US Congress, and the US Supreme Court to argue over.

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