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Casino Countermeasures: Are Casinos Cheating?

Ashford Kneitel1

Abstract

Since Nevada legalized gambling in 1931, casinos have proliferated into the
vast majority of states. In 2015, commercial casinos earned over $40 billion. This
is quite an impressive growth for an activity that was once relegated to the backrooms
of saloons. Indeed, American casino companies are even expanding into other
countries.
Casino games have a predetermined set of rules that all players—and the casino
itself—must abide by. Many jurisdictions have particularized statutes that allow
for the prosecution of players that cheat at these games. Indeed, players have long been
prosecuted for marking cards and sliding dice. And casino employees have long been
prosecuted for cheating their employers using similar methods. But what happens
when casinos cheat their players? To be sure, casinos are unlikely to engage in tradi-
tional methods of cheating for fear of losing their licenses. Instead, this cheating takes
the form of perfectly suitable—at least in the casinos’ eyes—game protection counter-
measures. This Article argues that some of these countermeasures are analogous to
traditional forms of cheating and should be treated as such by regulators and courts.
In addition, many countermeasures are the product of a bygone era—and serve only to
slow down games and reduce state and local tax revenues.
Part II discusses the various ways that cheating occurs in casino games. These
methods include traditional cheating techniques used by players and casino employees.
An emphasis will be placed on how courts have adjudicated such matters. Part III
describes countermeasures that casinos take to combat cheating. Part III also argues
1
UCLA School of Law, J.D. 2018. Many thanks to Brett Abarbanel, Anthony
Cabot, Walter Champion, Jon Michaels, Eugene Volokh, Ilan Wurman, and the
staff and editors of the Harvard Journal of Sports and Entertainment Law
for their hard work.
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56 Harvard Journal of Sports & Entertainment Law / Vol. 10

that some of these countermeasures are just reimagined variations of traditional cheat-
ing techniques—and gaming regulators and courts should treat them as such, espe-
cially considering the imbalance of powers between casinos and players. Part IV
demonstrates that many countermeasures are counterproductive because they slow down
the game and deprive the state and municipality of tax revenue.

I. Introduction

“ It’s not stacked, and any bastard who deals seconds from this new deck of years—
why, we’ll crucify him head down over a privy.” 2
Gaming industry insiders often describe the battle between casinos and
cheaters as a “cat-and-mouse game.”3 Cheaters try hard to stay one step
ahead of the casinos. Whenever a successful cheating technique is exposed,
casinos are ready to implement a new countermeasure to ensure they do not
fall prey to this technique again. But by then it is too late; the cheaters are
already poised to take advantage of a different chink in the casinos’ armor.
And while the history of the cat-and-mouse game has largely consisted
of casinos chasing cheaters, there is a parallel chase where legitimate players
are constantly looking for ways to take legal advantage of weaknesses in casi-
nos’ procedures. These players are called advantage players, and have proved
to be an equally—if not more—effective thorn in the side of casinos.4
The problem is that casino security is largely reactionary—and often
more so than is justified. When one cheating or advantage-play technique
makes the rounds, it is common for casinos’ countermeasure to go above and
beyond. Imagine a big box store that has the occasional shoplifter stealing
inexpensive goods. We would not expect the store to implement a counter-
measure whereby every shopper is strip-searched on his way out (put aside
the legal issues and public relations nightmare for a moment). The strip-
searches would grind shopping to a halt, and the revenue spent hiring un-
necessary personnel would make for a highly inefficient operation. Everyone
would say that the reaction of the big box store was counterproductive and
wasteful. But this is what casinos do all the time. A new scam turns up in a
2
John Steinbeck, East of Eden 169 (1986).
3
Adam Goldman, Casinos use controversial database to catch cheats, Las Vegas Sun,
(Dec. 29, 2003, 11:39 AM), https://lasvegassun.com/news/2003/dec/29/casinos-use-
controversial-database-to-catch-cheats/, [https://perma.cc/X3E7-JX7S].
4
See Eliot Jacobson, Advanced Advantage Play: Beating and Safe-
guarding Modern Casino Table Games, Side Bets and Promotions 5 (2015)
(“Advantage play is the act of legally exploiting procedural or structural weaknesses
in some aspect of casino games or operations in a way that generates an edge over
the casino.”).
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few casinos, and the casino industry responds by bringing a tank to a

fistfight.
The “tank” largely consists of countermeasures that are designed to
stymie certain cheating and advantage-play techniques. However, they
often do more harm to the casino than good. And worse, some of these
countermeasures harm legitimate players who would not even know how to
cheat at solitaire. In fact, these countermeasures might constitute cheating
themselves. After all, the power imbalance is clear. First, consumers widely
lack knowledge about casinos’ market pricing. It is very hard for players to
price-shop since casinos rarely advertise their payout structures and rules
outside of the casinos themselves.5 Second, casinos can review suspicious
players via their extensive surveillance system. In contrast, players can do no
such thing if they feel cheated by the casino. Lastly, casinos are often pro-
tected by their jurisdiction’s gaming regulatory body. Casinos usually get
the benefit of the doubt, and complaining patrons rarely make it past an
administrative hearing.6
This Article proceeds as follows: Part II describes various techniques—
both lawful and unlawful—that players have used to win money from casi-
nos. I will also discuss how courts have adjudicated such matters. Part III
describes various countermeasures that casinos have implemented to combat
the techniques described in Part II. An emphasis will be placed on why the
power imbalances between players and casinos might cause us to consider
some of these countermeasures to be cheating in and of themselves. Part IV
will explain that many of these countermeasures harm casinos by slowing
down games and depriving states and municipalities of tax revenue.

II. Cheating in Casinos

People have developed methods to beat games of chance from time

immemorial. Dice that were surreptitiously weighted to favor certain num-

5
“Rules” does not refer to the general rules of play that are common among
casinos. Instead, it refers to the rule deviations that can vary dramatically from
casino to casino. Take the game of blackjack for example. Some casinos allow play-
ers to “split” aces once, while others allow players to split aces three times. The
more times a casino allows a player to split aces, the more favorable the game is for
the player. See Arnold Snyder, The Big Book of Blackjack 116 (2006).
6
Cf. Walter T. Champion, Jr. & I. Nelson Rose, Gaming Law in a Nut-
shell 113–14 (2012) (explaining that Nevada courts grant the state’s gaming regula-
tory agency “great deference” to findings of fact and “almost never” examine legal
questions decided at the administrative level).
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58 Harvard Journal of Sports & Entertainment Law / Vol. 10

bers date back to the Roman Empire.7 The myriad methods people have
devised to cheat casinos run the gamut from sophisticated and invisible to
clunky and heavy-handed. Today, cheating is a crime in virtually all juris-
dictions that offer gambling.8
Nevada defines “cheating” as “alter[ing] the selection of criteria which
determine: (a) The result of a game; or (b) The amount or frequency of
payment in a game.”9 The critical element of the statute is “alter,”10 and as
we will see, courts have struggled to consistently determine when a game’s
criteria have been altered. Despite the confusion, the statute is considered
the gold standard since most jurisdictions around the world have adopted
Nevada’s framework when drafting their own casino cheating statutes.11
To understand how courts evaluate various schemes, it is imperative to
understand the fundamental methods themselves and the backdrop against
which they operate. Cheating in casinos generally takes two forms. First,
players can cheat games while giving the appearance of legitimate play.12
This is colloquially called cheating “from the outside.” Second, casino em-
ployees—usually dealers or floor supervisors—can cheat games while giving

7
Robert Rath, The Royal, Seedy, and Supernatural History of Dice, The Escapist
(Aug. 21, 2014), http://www.escapistmagazine.com/articles/view/video-games/col-
umns/criticalintel/12141-The-History-of-Dice-and-The-Oldest-Dice-in-the-World,
[https://perma.cc/74H7-DRJ8]. For a more contemporary account of loaded dice,
see Berman v. Riverside Casino Corp., 323 F.2d 977, 980 (9th Cir. 1963) (alleging
that the casino introduced loaded dice to cheat players).
8
See, e.g., Nev. Rev. Stat. § 465.083 (2017) (making it “unlawful for any
person . . . to cheat at any gambling game” in Nevada); see also I. Nelson Rose &
Robert A. Loeb, Blackjack and the Law 75 (1998) (“Cheating is a felony in virtu-
ally all gambling jurisdictions.”)
9
Nev. Rev. Stat. § 465.015 (2017).
10
Bob Nersesian, Beat the Players 173 (2006).
11
Steve Forte, Casino Game Protection: A Comprehensive Guide 39
(2004). For an example of a state statute similar to Nevada’s, see Miss. Code Ann.
§ 75-76-309(2) (West 2017) (“It is unlawful to mark, alter or otherwise modify any
associated equipment or gaming device in a manner that: (a) Affects the result of a
wager by determining win or loss; or (b) Alters the normal criteria of random selec-
tion, which affects the operation of a game or which determines the outcome of a
game.”). However, Macau, China, which is the world’s largest jurisdiction in terms
of casino revenue, uses quite a different (and ambiguous) standard. It defines a
cheater as one who “fraudulently runs or practices gaming or ensures the luck by
means of mistake, deceit, or using any equipment . . . .” Jorge A.F. Godhinho,
The Macau Penal Code and Other Penal Laws in English Unofficial Trans-
lation 32 (May 22, 2016) (draft version), https://bit.ly/2OD4AkW, [https://
perma.cc/Q75K-MDUP].
12
See Forte, supra note 11, at 612 (defining “outside scams”).
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the appearance of legitimately carrying out their job duties.13 This is called
cheating “from the inside.” Playing from the inside can also include em-
ployees colluding with outside agents posing as legitimate players.
What follows are some of the more notorious cheating methods and
how courts have construed their respective jurisdiction’s cheating statutes
and regulations. Also included are methods that resemble cheating, but
were ultimately held by courts to be acceptable—yet quite cunning—ways
of beating casinos. These strategies are usually called “advantage plays,”
because the player gains an advantage over the casino without crossing the
line into cheating territory.14 Instead, players take advantage of some loop-
hole inherent in a game’s design.15 Indeed, the most ubiquitous methods of
beating casino table games largely involve legal techniques.16 Distinguish-
ing between cheating and advantage plays will help determine which casino
countermeasures should be construed as cheating and which should be
valid.17

A. Methods Used to Cheat Casinos

1. Marked Cards

Marked cards are cards that have been physically altered to allow some-
one to identify them without looking at their faces.18

13
See id. at 609 (defining “inside scams”).
14
See Forte, supra note 11, at 11. See also Anthony Cabot & Robert Hannum,
Advantage Play and Commercial Casinos, 74 Miss. L.J. 681, 681 (2005) (“[A]dvantage
play is where the player can overcome the mathematical advantage that is built into
every house-banked casino game.”).
15
See Forte, supra note 11, at 11.
16
See, e.g., id. at 105 (“[M]ore supervisors and surveillance personnel are exposed
to suspected card counters than to all the other scammers revealed in this book
combined!”). Card counting, as will be described in Part II.B.1, is a legal method
of beating casinos at blackjack.
17
Commentators occasionally differ in their terminology. For example, Profes-
sors Cabot and Hannum classify both legal and illegal techniques into five separate
categories of “advantage play.” Cabot & Hannum, supra note 14, at 686–88. In
contrast, gaming consultant Steve Forte emphasizes that advantage plays do “not
include the pure mathematical strategies like card counting . . . .” Forte, supra
note 11, at 11. Card counting is discussed in Part II.B.1, infra.
18
United States v. Jing Bing Liang, 362 F.3d 1200, 1201 n.2 (9th Cir. 2004)
(“Certain cards can be marked for future detection . . . . These cards later can be
identified without seeing their faces, which can thereby substantially increase the
odds of winning a particular hand.”); George L. Lewis Jr., Casino Surveil-
lance: The Eye That Never Blinks XI (1996). For the science behind the sub-
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60 Harvard Journal of Sports & Entertainment Law / Vol. 10

In Sheriff of Washoe County v. Martin, a player was accused of cheating at

the card game of blackjack.19 The defendant made subtle bends in the cards,
allowing him to discern their identities even while the cards were
facedown.20 This technique is known as “card crimping.”21 The defendant
challenged the cheating statute as unconstitutionally vague.22
The Supreme Court of Nevada interpreted the cheating statute to pro-
scribe “alter[ing] the identifying characteristics or attributes of a game with
the intent to deprive another of money or property by affecting the other-
wise established probabilities of the game’s various outcomes . . . .”23 The
court held that the conduct constituted cheating because the defendant al-
tered “a crucial characteristic of the game.”24 The values of the cards were
known only to him—not to the casino or the other players.25 Thus, Martin
makes clear that players cheat when they physically alter cards to determine
the cards’ identities.26
In Kelly v. First Astri Corp., a blackjack player lost $120,000 and be-
came suspicious that the cards were marked before being introduced into the
game.27 The tribal casino determined that numerous employees participated
in the scam.28 The casino manager testified that the cards were indeed
marked with small red triangles that could be read before they were dealt
from the blackjack shoe.29 The player brought a tort action against the

stances used to mark cards, see Samuel Rubin, The Secret Science of Covert
Inks 55–68 (1987). Playing cards are not the only casino equipment that can be
marked. The game of Pai Gow is played with thirty-two domino tiles that are
mixed and distributed face down to the players and dealer. Domino tiles, like play-
ing cards, can be marked. Forte, supra note 11, at 387; Bill Zender, Pai Gow
Without Tears 62 (1989).
19
662 P.2d 634, 635–36 (Nev. 1983).
20
See id. at 636.
21
Id.; see also Jing Bing Liang, 362 F.3d at 1201 n. 2 (“Certain cards can be
marked for future detection . . . by slightly folding them (‘crimping’) . . . .”).
22
Martin, 662 P.2d at 636.
23
Id. at 638.
24
Id.
25
See id.
26
See also Nersisian, supra note 10, at 237 n.9 (“The one thing that is deter-
mined, nonetheless, is that daubing, bending, crimping or otherwise marking cards
constitutes cheating and is a felony.”)
27
84 Cal.Rptr.2d 810 (Ct. App. 1999). For the backstory to the case, see Bill
Zender, How to Detect Casino Cheating at Blackjack 2 (1999); Steve Forte,
Don’t Be a Mark for Marked Cards, Blackjack Forum (Dec. 1994), http://
www.blackjackforumonline.com/htadmin/markcard.htm, [https://perma.cc/AH54-
BNHA].
28
Kelly, 84 Cal.Rptr.2d at 813.
29
See id.
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casino, but a California appellate court held that recovery was barred due to
the state’s longstanding policy against judicial resolution of gambling
losses.30
In United States v. Vacarro, a team of cheaters used marked cards to steal
over $500,000 while playing blackjack at a Mississippi casino.31 The
scheme involved casino employees removing unmarked cards from the target
casino, having their coconspirators mark the cards using a special dye, and
replacing the cards in the casino’s storage area.32 The marked cards were
introduced into the game and the coconspirators bet accordingly. The de-
fendants were convicted under the Racketeer Influenced and Corrupt Orga-
nizations Act for cheating a casino in violation of a Mississippi law that
makes it “unlawful to mark, alter or otherwise modify any associated equip-
ment or gaming device . . . .”33

2. Glimpsing Facedown Cards

While physically altering (i.e., marking) cards in order to aid identifi-

cation is prohibited, the Supreme Court of Nevada has held that the state’s
cheating statute does not prohibit players from making decisions based on a
dealer’s facedown “hole card” if that card was exposed due to the dealer’s
error. In Sheriff v. Einbinder, a careless dealer exposed her otherwise-un-
known hole card to a player who signaled this information to his agent who
was also playing at the table.34 In a pithy opinion, the court seemed to be
satisfied with the defendant’s conduct because he “was lawfully seated at his
position at the blackjack table” and “did not use any artificial device to aid
his vision.”35

30
See id. at 812.
31
115 F.3d 1211 (5th Cir. 1997).
32
See id. at 1215.
33
Id. at 1220 (internal quotation marks omitted) (citing Miss. Code Ann.
§ 75-76-309(2) (West 2017)); see also United States v. Tschirgi, 65 F.3d 177 (9th
Cir. 1995) (unpublished disposition) (describing an identical scheme where a simi-
lar group cheated a tribal casino in Washington State out of $800,000); 1 Plead
Guilty in Card-Marking Scheme at Lummi Indian Casino, Seattle Times (Feb. 3,
1995), http://community.seattletimes.nwsource.com/archive/?date=19950203&
slug=2102984, [https://perma.cc/2TRH-BX5B] (reporting the Tschirgi scam).
34
808 P.2d 22 (Nev. 1984) (unpublished table decision). For the text of the
Nevada Supreme Court’s order, see Arnold Snyder, Is Spooking Legal?, Blackjack
Forum (June 1987), http://www.blackjackforumonline.com/content/spooking.htm,
[https://perma.cc/YU7C-V5SB].
35
Einbinder, 808 P.2d at 22; see also Snyder, supra note 34.
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62 Harvard Journal of Sports & Entertainment Law / Vol. 10

In United States v. Jing Bing Liang, a team of cheaters used a sleight-of-

hand technique to peek at the next card to be dealt from the “dealing shoe”
in baccarat, a game where the hand closest to nine points wins.36 Because
they knew the identity of the next card, the cheaters greatly increased their
advantage over the casino.37 The coconspirators performed this scam in casi-
nos across the country, and eventually pleaded guilty under federal racke-
teering charges.38 The method is nothing new, and has long been used to
bilk casinos out of millions of dollars.39

3. Sliding Dice

In Skipper v. State, the defendant was accused of cheating at the game of

craps in a Nevada casino.40 Craps involves players tossing dice down a long
table and placing wagers on which numbers will appear.41 The dice are
required to randomly tumble down the table.42 In Skipper, however, the
defendant threw the dice in such a manner that a single die slid down the
table without tumbling.43 This technique is known as “dice scooting” or
“dice sliding,”44 and provides the cheater with a massive advantage over the
casino.45 To further ensure success, the defendant employed an agent—pos-
ing as another player—to obscure the dealer’s vision as the die slid down the
table.46

36
362 F.3d 1200, 1201 (9th Cir. 2004).
37
See id.
38
See id.
39
See Forte, supra note 11, at 362–63 (describing one such method of peeking the top
card and noting that the “scam netted cheaters about three million dollars in one
evening back in the middle 1980s in Atlantic City”).
40
879 P.2d 732, 733 (Nev. 1994).
41
Robert C. Hannum & Anthony N. Cabot, Practical Casino Math 89 (2d.
ed. 2005).
42
Skipper, 879 P.2d at 734.
43
Id. at 732.
44
Forte, supra note 11, at 274. This scam has stood the test of time. For recent
examples, see State v. Young, 95 N.E.3d 420 (Ohio Ct. App. 2018); Todd Prince,
Foreign national booked in Las Vegas on charges of cheating at craps, Las Vegas Rev.-J.
(Nov. 29, 2017), https://www.reviewjournal.com/crime/foreign-national-booked-in-
las-vegas-on-charges-of-cheating-at-craps/, [https://perma.cc/CTQ7-HJFQ]; 2 on the
run, 1 arrested after casino cheating scheme nets $56,000, WGNO (Aug. 18, 2017),
http://wgno.com/2017/08/18/2-on-the-run-1-arrested-after-casino-cheating-scheme
-nets-56000/, [https://perma.cc/98A7-2BGH].
45
Forte, supra note 11, at 280–81.
46
Skipper, 879 P.2d at 732–33.
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The Supreme Court of Nevada reached two conclusions: (1) that the
defendant’s play violated the rules of craps, and (2) that this violation consti-
tuted cheating. In reaching its first conclusion, the court reasoned that the
conduct violated the rules of craps because dice are required to randomly
tumble, and the defendant intentionally used a confederate to “blindfold[ ]
the dealer while placing the dice on the table in a winning combination.”47
The court reached its second conclusion by explaining that the statutes ap-
ply “to those who attempt to supplant elements of chance with surreptitious
conduct that alters both the nature of the game and the criteria for win-
ning.”48 The defendant’s conduct satisfied this criteria because he “surrepti-
tiously and contrary to the rules of the game, alter[ed] the probable outcome
of a throw and drastically increase[d] the chances of winning certain types of
bets on the craps table.”49

4. Mechanical and Electronic Devices

Not all Nevada cheating cases revolve around the interpretation of “al-
ter.” In Sheriff, Clark County, Nevada v. Anderson, the defendant built a com-
puter into his shoes to assist him in playing blackjack.50 He cut holes in his
socks and used his toes to enter the values of cards as they were dealt.51
Based on the cards that had been dealt, the computer would provide the
optimal playing strategy for the remaining cards.52 The defendant was
charged under a Nevada statute prohibiting the use of a device to assist in
game strategy.53 The Supreme Court of Nevada rejected the defendant’s
argument that the statute’s use of “device” was unconstitutionally vague,
47
Id. at 734.
48
Id.
49
Id. But see Cabot & Hannum, supra note 14, at 768 (arguing that the slot
machines cases, discussed infra in Part II.B.2, cannot be reconciled with Skipper
because the logic would suggest that the rules of slot play allow for manipulation of
the reels).
50
746 P.2d 643, 644 (Nev. 1987).
51
See id.
52
See id. The astute reader will recognize this strategy as card counting, albeit
with the aid of a computer instead of one’s mind. See infra Part II.B.1 (providing
more information on card counting).
53
Anderson, 746 P.2d at 644 & n.1 (citing then-current Nev. Rev. Stat. §
465.075, which has since been modified to expressly ban the assistance of com-
puters). For other device-prohibition statutes, see N.J. Admin. Code §13:69F-8.1
(2012) (“no person shall possess with the intent to use, or actually use, at any table
game, either by himself or herself or in concert with others, any calculator, com-
puter, or other electronic, electrical or mechanical device to assist in projecting an
outcome at any table game or in keeping track of or analyzing the cards having been
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64 Harvard Journal of Sports & Entertainment Law / Vol. 10

concluding that “a hidden computer is precisely the type of conduct envi-

sioned by the statute” and that the term “device” “certainly includes
computers.”54

5. Other Sleight-Of-Hand Methods

In Moore v. State, a blackjack player in Nevada used a sleight-of-hand

technique that allowed him to secretly remove a card from the game and
switch it with another card in order to improve his hand.55 The technique,
known as “mucking,” has long been used by cheaters around the world.56
The defendant was convicted under a narrow cheating statute that made it
unlawful to change “the outcome of a game . . . after the outcome is made
sure but before it is revealed to the players.”57
In State v. Heffner, a dealer in Washington surreptitiously manipulated
the order of the cards, enabling him to deal hands resulting in $5,000 bo-
nuses to players.58 This sleight-of-hand technique is known as “stacking the

dealt, the changing probabilities of any table game, or the playing strategies to be
utilized.”); see also Coquille Ind. Tr. Code §198.700.
54
Anderson, 746 P.2d at 644.
55
692 P.2d 1278, 1278 (Nev. 1984).
56
See Forte, supra note 11, at 366 (describing a baccarat scam where a cheater
stole millions from a casino in Asia by mucking cards in and out of play); George
Joseph, “ Hand Mucking” : The Art of Switching Cards in Play 14 (1982) (“I
was surprised to find evidence of this muck as far away as Bophuthatswana in South-
ern Africa . . . . I was employed by Sun City Casino to demonstrate for their surveil-
lance and casino personnel various methods of casino cheating and the procedures
necessary to overcome sleight of hand stealing.”); Dustin D. Marks, Cheating at
Blackjack: Inside the Mindset and Methods of the Game’s Most Successful
Cheaters 174 (2016) (describing a mucking technique that “has been used by
cheaters for years”); Andrew Rosenblum, Why Baccarat, the Game of Princes and Spies,
Has Become a Target for High-Tech Cheaters, Popular Science (Aug. 11, 2011), http:/
/www.popsci.com/technology/article/2011-08/baccarat-101-why-high-rolling-
game-princes-and-spies-has-become-target-high-tech-cheaters#page-5, [https://
perma.cc/3J74-TJAS] (noting how a cheater won $1 million at Connecticut’s
Foxwoods Casino using a mechanical device up his sleeve that allowed him to
switch cards in baccarat).
57
Moore, 692 P.2d at 1278 (quoting Nev. Rev. Stat. § 465.070(1) (1981)).
58
110 P.3d 219, 221 (Wash. Ct. App. 2005).
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deck.”59 The dealer was convicted under a broader fraud statute, despite the
existence of Washington’s cheating statute.60
In State v. Bethea, an inattentive New Jersey craps dealer looked away as
a player made a “winning” bet after the game’s outcome was known.61 The
bet was paid and the casino’s surveillance department later discovered the
late bet and alerted law enforcement.62 Placing winning bets after a game’s
outcome is determined is called “past-posting.”63 New Jersey defines cheat-
ing as winning money by “purposely or knowingly by any trick or sleight of
hand performance or by fraud or fraudulent scheme, cards, dice or device.”64
The defendant was convicted under this statute because he “waited for the

59
Steve Forte, Poker Protection: Cheating . . . and the World of Poker
76 (2006) (defining “stacking the deck” as “position[ing] the cards during the
pickup or riffle shuffle, for the purposes of dealing one or more strong hands to a
dealer’s partner(s)”). Playing cards are not the only casino equipment that can be
stacked. The game of pai gow is played with domino tiles that are shuffled and
dealt facedown to players and the dealer. See discussion supra note 18. Domino tiles,
like playing cards, can be stacked. Forte, supra note 11, at 389.
60
See Heffner, 110 P.3d at 222 (noting the existence of Wash. Rev. Code §
9.46.196 (2002)).
61
No. 13-11-3043, 2016 WL 6440654, at *1 (N.J. Super. Ct. App. Div. Nov.
1, 2016). See also Brian Ianieri, Serial Cheater at Atlantic City Casino Games Loses
Appeal, The Press of Atlantic City (Nov. 1, 2016), http://www.pressofatlantic
city.com/business/serial-cheater-at-atlantic-city-casino-games-loses-appeal/arti-
cle_e07adc5f-efa3-515f-aea4-245e868146c0.html [https://perma.cc/W4QW-
V329].
62
See Bethea, 2016 WL 6440654, at *1.
63
Betting on a winning number after it has already been determined is probably
most prevalent in roulette. See Forte, supra note 11, at 302 (“The most common
approach for cheating [at roulette] is ‘past posting’, that is, betting on the winning
number after the ball has landed.”); Bill Friedman, Casino Management 38
(1974) (“[Past-posting] is the most common method of customer cheating . . . . In
all games customers may try to switch wagers from losing to winning bets. This is
particularly popular in roulette . . . .”). And as Bethea demonstrates, the technique
can be used in craps too. See Forte, supra note 11, at 284 (“Occasionally, past
posting techniques similar to those used in roulette surface in craps.”). While the
dealer in Bethea was inattentive and not part of the scam, past-posting has a greater
chance of success when cheaters collude with dealers. See Darwin Ortiz, Gam-
bling Scams 114 (1984) (“The most extensive past-posting conspiracy I know of oc-
curred a few years at the San Remo Casino in Italy. About one-third of the
croupiers were involved in a scam to allow agents to past post at roulette. The fraud
eventually came to light when the dealers got so greedy that casino profits dropped
by over 30 percent. In all, more than forty croupiers received prison terms.”).
64
N.J. Stat. Ann. § 5:12-113(a) (West 2002).
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66 Harvard Journal of Sports & Entertainment Law / Vol. 10

craps dealer to become distracted and then placed his bet after the winning
number was called.”65

B. Legal Methods Used to Gain an Advantage Over Casinos

1. Card Counting

Contrary to what Hollywood would have you believe,66 card counting

does not constitute cheating.67 Card counting is a strategy used to gain an
advantage over the casino in the game of blackjack.68 Card counters men-
tally keeping track of the ratio between high-valued and low-valued cards.69
Generally speaking, players have an advantage when a sufficient number of
high-valued cards remain in the deck.70 In Sheriff of Washoe County v. Mar-
tin, the Supreme Court of Nevada reasoned that card counting does not im-
plicate the state’s cheating statute because it does not alter any of the basic
features of the game.71

65
Bethea, 2016 WL 6440654, at *6.
66
See, e.g., 21 (Relativity Media 2008).
67
See, e.g., Chen v. Nev. State Gaming Control Bd., 994 P.2d 1151, 1153 (Nev.
2000) (Maupin, J., dissenting) (“[N]either card counting nor the use of a legal
subterfuge such as a disguise to gain access to [blackjack] is illegal under Nevada
law.”); Lyons v. State, 75 P.2d 219, 221–22 (Nev. 1989) (noting that card counting
is not unlawful under the state’s cheating statute because players merely “exploit
what their skills and the play of the games will afford them”); Bartolo v. Boardwalk
Regency Hotel Casino, Inc., 449 A.2d 1339, 1342 (N.J. Super. Ctr. Law Div. 1982)
(“[C]ard counting does not involve dishonesty or cheating.”); Robert A. Nerse-
sian, The Law for Gamblers 18 & n.4 (2016) (explaining that the courts and legisla-
tures uniformly agree that card counting does not constitute cheating, and
collecting decisions from different states explaining such). Nor is card counting
technically considered advantage play. Forte, supra note 11, at 11. However, it is
appropriate to include it in this section for two reasons. First, it is a legal strategy
used to gain an advantage over the casino. Second, because of the controversy and
myriad litigation over whether casinos must allow card counters to play.
68
See generally Bill Zender, Card Counting for the Casino Executive
(1990).
69
See Campione v. Adamar of New Jersey, Inc., 714 A.2d 299, 301 (N.J. 1998)
(“Card counting is a method of playing blackjack that involves keeping track of the
number of ‘high value’ cards.”).
70
Id. (“[Card counting] allows a blackjack player to identify a favorable count,
which occurs when an unusually high percentage of the cards remaining in the
‘dealing shoe’ are high value cards. At that time, the chances increase that the
dealer will ‘bust,’ or deal cards that exceed 21 points, thereby permitting the card
counter to win.”).
71
662 P.2d 634, 638 (Nev. 1983).
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2. Taking Advantage of Defective Equipment

The astute player can also take advantage of deficiencies in the equip-
ment provided by casinos. As previously discussed, it is well established
that players marking cards constitutes cheating.72 But what happens when
poorly manufactured cards contain a defect that enables players to identify
their values when they are facedown?
In 2012, world-famous poker player Phil Ivey won $9.6 million while
playing baccarat at New Jersey’s Borgata Casino.73 Casinos’ playing cards
are supposed to have symmetrical patterns on their backs so they cannot be
distinguished when lying face down.74 However, unbeknownst to Borgata,
their cards were manufactured with tiny imperfections, and the cards could
thus be distinguished if rotated 180 degrees.75
Because Ivey wagered up to $100,000 per hand, Borgata accommo-
dated his unusual requests such as having his friend seated next to him and
having the dealer rotate cards—under the guise of being superstitious.76 In
reality, Ivey’s friend was trained to read the minute imperfections on the
backs of the cards,77 and he instructed the dealer to rotate the cards based on
whether the cards’ values were mathematically advantageous.78 After all the
cards were properly sorted, Ivey was effectively playing the game with the
cards face-up. Ivey knew exactly when the favorable cards would fall and he
bet accordingly. Borgata executives did not uncover the method until they
heard a media report that London’s Crockfords Casino withheld £7.3 million
from Ivey.79 At that point, Borgata determined that Ivey was using a
scheme known as “edge sorting.”80
72
See supra Part I.A.1.
73
Marina Dist. Dev. Co. v. Ivey, 216 F. Supp. 3d 426, 430 (D.N.J. 2016).
74
See, e.g., Jacobson, supra note 4, at 25 (discussing the vulnerability of games
when the pattern on backs of playing cards is asymmetrical).
75
See id.
76
See id.
77
See id. at 439 (“[Ivey’s friend]’s mental acumen in distinguishing the minute
differences in the patterns on the back of the playing cards is remarkable.”).
78
See id. at 430.
79
See id. See also Ivey v. Genting Casinos UK Ltd. [2014] EWHC 3394 (QB).
80
Marina, 216 F. Supp. 3d at 430. While edge sorting only recently gained
prominence, it has been used in casinos long before Marina. See, e.g., Jacobson,
supra note 4, at 25 (“[Advantage players] have been using it to beat the house for 50
years or more.”); Forte, supra note 11, at 171 (referring to edge sorting by its
original name, “playing the turn,” and noting that it is “a very old advantage
strategy once popular with many oldtimers”); Stanford Wong, Blackjack
Secrets 137 (1993) (“I know a pro who has used [edge sorting] in a casino with
good results.”).
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68 Harvard Journal of Sports & Entertainment Law / Vol. 10

In a civil action brought by Borgata to recover Ivey’s “winnings,” a

federal district court held that the edge-sorting scheme violated the marked-
card provisions of the state’s Casino Control Act.81 The court concluded
that asking a dealer “to turn a card a particular way so that the pattern on
the edge of the card will distinguish it from other cards” was no different
from marking cards with physical substances or crimps.82 After New
Jersey’s gaming regulatory agency concluded its own investigation, the state
refused to file criminal charges (and it never issued a decision as to the
legality of the edge sorting scheme).83
The Marina District Development Company v. Ivey court distinguished the
impropriety of edge sorting from the propriety of card counting by reason-
ing that card counting uses memory and statistics, while edge sorting uses
manipulation of cards.84 This focus on “manipulation” makes it hard to
reconcile with the following case, where the Supreme Court of Nevada held
that a player’s manipulation of a slot machine’s handle was acceptable.
In Lyons v. State, the defendant was charged with cheating while play-
ing slot machines in Nevada because he pulled the handle in a manner that
caused the reels of the machine to stop spinning prematurely.85 This tech-
nique is known as “handle-popping.”86 The court explained that the state’s
cheating statute was intended to prevent “knowing, purposeful, unlawful
conduct designed to alter the criteria that determines the outcome” of a
game.87 The court acknowledged that while handle-popping indeed alters
the usual criteria of the game, it does not constitute cheating because the
statute is unconstitutionally vague as applied to handle-popping.88 The
court provided two justifications. First, the technique “neither damages nor
mechanically alters a slot machine.”89 Instead, the player is taking advan-

81
Marina, 216 F. Supp. 3d at 433 (citing N.J. Stat. Ann. §§ 5:12-115(a)(2),
(b) (2011)).
82
Id. at 434.
83
See id. at 432–33 & n.5.
84
See id. at 439 n.25.
85
775 P.2d 219, 222 n.3 (Nev. 1989).
86
Id. at 220. See also Forte, supra note 11, at 608 (defining handle-popping as
“an old technique for manipulating the reels on mechanical slot machines”); Cabot
& Hannum, supra note 14, at 768 (noting that handle-popping is now moot because
of technological advancements).
87
Lyons, 775 P.2d at 221.
88
See id. at 222. But see Cabot & Hannum, supra note 14, at 767 (arguing that
handle-popping constitutes cheating under contract theory because the player “is
fraudulently attempting to alter the basic premise of the contract, i.e., to remove
the random element upon which the very outcome of the contract is based”).
89
Lyons, 775 P.2d at 222.
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tage of the slot machine’s mechanical deficiencies.90 Second, there were no

rules directing players to pull a slot machine handle in a specific manner.91
The court emphasized that well-intentioned players can stumble upon vari-
ous methods of handle manipulations in an attempt to change their luck.92
Within one month of Lyons, the Nevada legislature took aim at handle-
popping by amending a different cheating statute to expressly proscribe “va-
rying the pull of the handle of a slot machine, with knowledge that the
manipulation affects the outcome of the game . . . .”93 Two years later, in
Childs v. State, the defendant was charged with handle-popping under the
new Nevada statute.94
The Childs court reasoned that the amendment did not affect its deci-
sion in Lyons because a different statute already defined “cheat,” and handle-
popping still did not fit that definition.95 Put another way, even though the
legislature expressly banned handle-popping, the underlying definition of
“cheat” remained the same: “alter[ing] the selection of criteria which deter-
mine: (a) The result of a game; or (b) The amount or frequency of payment
in a game.”96 Moreover, because the amendment failed to describe what a
“normal” pull of a slot machine handle looked like, players could not know
what “varying the pull” of a handle looked like.97

III. Casino Game Protection Countermeasures and Power

Imbalances

Casinos have implemented a wide variety of countermeasures to com-

bat cheating, advantage play, and card counting. Indeed, many current
countermeasures are the result of losses incurred through past use of these
strategies.98 On the other hand, some countermeasures are born out of an
unjustified fear and do not solve any issues that threaten casinos.99 Noted

90
See id.
91
See id.
92
See id. at 223.
93
Childs v. State, 816 P.2d 1079, 1080–81 (Nev. 1991) (citing Nev. Rev.
Stat. § 465.070(7) (2017)).
94
Id. at 1079.
95
Id. at 1081 (citing Nev. Rev. Stat. § 465.015 (2017)).
96
Nev. Rev. Stat. § 465.015 (2017).
97
Childs, 816 P.2d at 1081.
98
See Lewis, Jr., supra note 18, at 9.
99
See, e.g., Forte, supra note 11, at 523–26 (discussing a variety of procedures
that are counterproductive from the casino’s perspective); Zender, supra note 27, at
134 (“With the advent of Lawrence Revere’s book, Blackjack as a Business, and the
well publicized blackjack teams formed by Ken Uston . . ., the casinos hit an all
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70 Harvard Journal of Sports & Entertainment Law / Vol. 10

gaming attorney Robert Nersesian suggests “casinos appear to cheat, and

even cheat with the imprimatur of the State on occasion.”100 This is not
hyperbole.
Professors Cabot and Hannum posit that all casino regulatory systems
share the common normative objectives of keeping games both fair and hon-
est.101 They define “honesty” as whether a casino offers a truly random
game, and “fairness” as the percentage of every dollar wagered that a casino
should be allowed to keep.102 The following countermeasures arguably vio-
late both objectives: they make games less honest because they reduce the
random selections; and make games less fair because the casino keeps a
higher percentage of every dollar wagered than it would otherwise keep
under truly random conditions.
The imbalance of power between casinos and players is quite stark.
Normatively speaking, we would expect any business catering to the general
public to have superior bargaining power. But the imbalance between casi-
nos and players is unique because of three factors: the lack public informa-
tion about the market, the imbalance in ability to review questionable
practices, and regulatory agencies that protect casinos’ practices.
First, there is a widespread lack in consumer knowledge about market
pricing. Casinos generally do not advertise their rules and payout structures
outside of their four walls. Therefore players cannot price shop casino games
as easily as they can with cell phones or vegetables. And even when players
do enter a casino, it is nearly impossible to determine the odds of winning
and the frequency of payouts of popular games such as slot machines.103
Second, casinos have access to an extensive surveillance system, and can
review any oddities or improprieties that might arise.104 Conversely, players
have no such surveillance access (or expertise) if they feel aggrieved. Most of
the time, casinos will review irregularities while the suspect parties are still
on property. Because of this, casinos can react quickly and minimize their
losses. Conversely, by the time retailers in other industries have time to
review footage or use loss-prevention technology, it is too late: the thief is
usually long gone. Moreover, most brick-and-mortar retailers do not have
surveillance operators watching cameras in real time. To be sure, this power

time high on the paranoid-o-meter, and instituted many of the anti-counter meth-
ods used today.”).
100
Nersesian, supra note 10, at 93.
101
Hannum & Cabot, supra note 41, at 237.
102
Id.
103
See id. at 238.
104
See infra Part III.B.
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imbalance between casinos and players is created by the state: casinos are
generally required to install surveillance cameras.105
Third, casinos in every jurisdiction are subject to the rules of their
gaming regulatory body. But these agencies often give cover to casinos by
allowing them to use methods that would normally be associated with those
who cheat casinos. For example, while players are prohibited from marking
cards, casinos are indeed allowed to use them.106 In doing so, these gaming
agencies aid casinos in making games less fair and less honest—which stands
in direct contradiction to what Professors Cabot and Hannum posit are the
main objectives of gaming regulators.

A. Preferential Shuffling

Preferential shuffling is a countermeasure used in blackjack where a

casino will shuffle the deck whenever it wants.107 Arguably the most con-
tested of all casino countermeasures, many prominent gaming experts stand
firm in their belief that it constitutes cheating.108
In order to gain a worthwhile advantage using card counting, the cards
need to be dealt to a sufficient depth in the shoe. Put another way, card
counters will have a better gauge of their advantage as more cards are dealt.
Because the odds in blackjack are dynamic, a “player’s expectation of win-
ning will change as certain cards are played in the shoe.”109 In order to
combat card counting, casinos might preferentially shuffle whenever the
composition of the undealt cards favors players. The effect of this preferen-
tial shuffle is threefold. First, card counters will not stay long if this coun-

105
See, e.g., Nev. Gaming Reg. 5.160(6) (2018) (“[E]ach licensee shall install,
maintain and operate a casino surveillance system in accordance with the casino
surveillance standards adopted by the chairman.”).
106
See infra Part III.C. Another example, as noted in the previous paragraph, is
that most jurisdictions mandate casinos install surveillance systems to monitor their
games.
107
See Forte, supra note 11, at 560 (“[Preferential shuffling] occurs when a
dealer shuffles early if the remaining cards favor the player, but deals down to the
bottom of the deck if the remaining cards favor the house.”).
108
See id. at 560–61 (collecting opinions from experts that believe preferential
shuffling constitutes cheating); see also Peter A. Griffin, The Theory of Black-
jack: The Compleat Card Counter’s Guide to the Casino Game of 21 136
(6th ed. 1999) (“[S]ome people have suggested that the Gaming Commission
should regard [preferential shuffling] as illegal.”); Zender, supra note 27, at 135
(“[Arnold] Snyder, [Edward] Thorp, Don Schlesinger and others have gone on re-
cord as stating that they believe preferential shuffling to be out and out cheating.”).
109
Cabot & Hannum, supra note 14, at 752.
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72 Harvard Journal of Sports & Entertainment Law / Vol. 10

termeasure is used against them.110 After all, the idea of counting cards is to
make big bets when the composition favors players. Here, the casino shuf-
fles whenever that opportunity arises. This makes preferential shuffling
quite effective at keeping card counters at bay if it is used against actual card
counters (as opposed to players who are incorrectly determined to be card
counters).111 Second, it extinguishes any possible advantage card counters
have because preferential shuffling has the effect of removing high-valued
cards from the deck altogether—the very cards needed for players to have
any chance at winning.112 Indeed, the tactic adds about one-and-a-half per-
cent to the house advantage.113 Third, it extinguishes any possible advan-
tage that casual, unsophisticated players have. These last two effects
probably push preferential shuffling into cheating territory.
Recall that cheating is generally defined as altering the elements of
chance that determine the result of a game or the frequency of payment in a
game.114 Here, preferential shuffling alters both the results of blackjack and
the frequency of payments in the game.115 Indeed, whenever the composi-
tion of the remaining cards favors players, casinos can shuffle and destroy the
expected favorable opportunities. Moreover, preferential shuffling increases
the unfavorable opportunities for players.116 It is unlawful for casinos to
remove cards from the deck, but preferential shuffling has the effect of doing
so since it keeps favorable cards out of play.117 Indeed, mathematical simu-

110
See Snyder, supra note 5, at 291 (“Preferential shuffling is primarily a
method casinos use to get a higher advantage against non-counters who aren’t aware
of it. Casinos like it because it chases the counters away from their tables in the first
place, then gives the house a stronger advantage against the non-counters.”).
111
In addition, it alienates non-card counters who get irritated when the casino
shuffles in the middle of a “hot” shoe.
112
See Griffin, supra note 108, at 135–36.
113
Snyder, supra note 5, at 291.
114
See, e.g., Nev. Rev. Stat. § 465.015 (2017).
115
See also Forte, supra note 11, at 560 (noting that blackjack expert Bryce
Carlson thinks that preferential shuffling is “outright cheating . . . it alters the
selection of criteria both with respect to the result and frequency of payment”)
(citing Blackjack Forum (June 1995)).
116
See id. at 561 (“[T]he preferential shuffle rids the game of favorable opportu-
nities and increases unfavorable opportunities for all players.”) (emphasis in
original).
117
Snyder, supra note 5, at 291 (“It would be illegal for a casino to remove
cards from a deck, but it is not illegal for them to employ a dealing style that will
accomplish the same end.”). But see Griffin, supra note 108, at 136 (“Since mathe- R
matically [preferential shuffling] is equivalent to shorting the deck . . ., and the
latter practice is specifically prohibited by law, some people have suggested that the
Gaming Commission should regard the practice as illegal. In all honesty, though, I
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lations have repeatedly proven that preferential shuffling dramatically in-

creases the house advantage against casual players and card counters alike.118
The injustice is magnified when one realizes that novice players will never
know that casinos are forcing them to play at only the most disadvantageous
times. And while players generally expect to lose in the long run, they also
expect a fair shot at winning in the short run. Preferential shuffling all but
eliminates this.
One former Nevada Gaming Control agent has suggested that prefer-
ential shuffling would be legal if casinos posted the rule change just like
they would post any other rule change in blackjack.119 For example, casinos
regularly advertise their blackjack rules, such as “Blackjack Pays 6-to-5”
and “Dealer Hits Soft 17.”120 This former agent suggests that casinos
might one day have to post signs alerting players that “This Casino May
Preferentially Shuffle At Any Time.”121 On the other hand, Professors
Cabot and Hannum have argued that although casinos should “generally be
permitted to set the terms and conditions of the gaming contracts that they
are willing to accept, the overriding principles of gaming regulation are that
the games offered are fair and honest.”122 And because of this basic rule of
fairness, casinos should not be permitted to preferentially shuffle—even if it
were an express contractual term.123 To be sure, the Nevada Gaming Con-
trol Board still does not have a written policy on preferential shuffling.124
However, a former chairman of the Nevada Gaming Control Board has
stated that preferential shuffling is probably unlawful.125

think we must recognize that player card-counting is just the obverse of preferential
shuffling—what’s sauce for the goose is also for the gander.”).
118
See, e.g., Griffin, supra note 107, at 136 (“[Preferential shuffling] would give
the basic strategist a 1.5% disadvantage. By using a better correlated betting count
to decide when to reshuffle, the house edge could probably be raised to 2%.”);
Zender, supra note 26, at 135–40 (demonstrating that preferential shuffling hurts play-
ers, but concluding that “preferential shuffling works against the casino if it be-
comes procedure. A casino that shuffled in all positive deck situations, regardless of
the number of decks, would be virtually shooting itself in the foot. The loss in total
hands dealt would cost the casino more money then the additional 0.1 percent to
0.3 percent gained by shuffling on all positive counts”).
119
See Zender, supra note 27, at 140.
120
See id.
121
See id.
122
Cabot & Hannum, supra note 14, at 752.
123
See id.
124
See David W. Schnell-Davis, High-Tech Casino Advantage Play: Legislative Ap-
proaches to the Threat of Predictive Devices, 3 UNLV Gaming L.J. 299, 332 (2012).
125
See id.
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74 Harvard Journal of Sports & Entertainment Law / Vol. 10

All casino gambling “is essentially an adhesion contract between the

casino and its patrons.”126 And the preferential shuffle exposes the over-
whelmingly superior bargaining power of the sophisticated casino versus the
unsophisticated amateur gambler. Casinos often determine when to prefer-
entially shuffle through software programs. Professors Cabot and Hannum
emphasize the unfairness of casinos’ use of superior technology in determin-
ing when to preferentially shuffle.127 And while casinos’ monopoly on using
software is problematic,128 the more troubling aspect with preferential shuf-
fling is the possibility of duping the unsuspecting casual player.

B. Surveillance Cameras

Arguably the most visible countermeasure is the vast swath of surveil-

lance cameras monitoring every inch of the casino floor.129 For the bigger
resorts, the number of cameras can run into the thousands.130 And while it
is readily apparent that casino ceilings are peppered with these black
domes,131 not much is known about the inner-workings of the surveillance
department.132 It may seem that with so many cameras, no one could get

126
Cabot & Hannum, supra note 14, at 722.
127
See id.
128
See infra Part III.B.
129
But not even constant monitoring really captures every aspect of a game. See
Forte, supra note 11, at 514 (“[T]he camera lens doesn’t always provide a complete
picture. Perception of depth can present problems in the most fundamental areas,
such as reading bet size, which is obviously a crucial factor.”).
130
See Rachel Crosby, Aria Security is the Old-Fashioned Way—Watching People, Las
Vegas Review Journal (Aug. 23, 2014), https://www.reviewjournal.com/business/
casinos-gaming/aria-security-is-the-old-fashioned-way-watching-people/, [https://
perma.cc/J7HY-DX83] (“Nearly 4,000 cameras cover activity in 98 percent of the
luxury resort. Everything that happens is monitored. Every incident is recorded;
every red flag investigated.”). But more surveillance cameras do not necessarily
equate to more operators actually monitoring the gaming floor. See, e.g., Snyder,
supra note 5, at 300 (“The surveillance department is always understaffed. In most
of the big casinos, there will be anywhere from one to three surveillance monitors
watching the video screens.”).
131
Casino surveillance cameras are usually encased in black domes, which make
it “nearly impossible for people to tell which direction they are monitoring.”
Elivia, Casino Security Cameras—Things You Are Interested In, Reolink (last updated
Oct. 11, 2018), https://reolink.com/casino-security-cameras/ [https://perma.cc/
G9KZ-72HD].
132
See Forte, supra note 11, at 514 (“Over the last few years, a number of televi-
sion shows have featured rare, behind the scenes glimpses into the surveillance
world. For most pit personnel, this is the only time they have ever been exposed to
the inner workings of this department.”).
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away with any form of deception. But the truth is that the surveillance
department—like most law enforcement agencies—rarely catches cheaters
red-handed. Instead, most cheaters and advantage players are usually de-
tected by appearing on the radar through prior incidents.133 Indeed, the
department is more reactive than proactive.134 In addition, the ubiquitous
presence of cameras has a powerful deterrent effect.135 And most impor-
tantly (for our purposes), gaming regulators often mandate that casinos in-
stall a surveillance system.136 In Nevada, casinos must monitor every table
game—regardless of how small the stakes are or whether there are any play-
ers gambling.137
Casinos’ use of surveillance cameras can be quite concerning. To illus-
trate, first consider a cheating technique used by players who work with
confederates: Blackjack requires dealers to load their hole cards on the table
without anyone glimpsing their identities. But some dealers become sloppy
and are susceptible to a technique that enables their hole cards to be viewed
from far off the gaming table. This technique is called the “express
play.”138 It involves a confederate who is positioned off the target blackjack

133
See id. at 515; see also id. at 532–33 (“Historically, when we look back at the
most successful scams and strategies, industry awareness came after the fact—we
first had to be a victim. No gamer ever recognized the possibility of peeking up
into a shuffle machine with a hidden camera until it was too late.”).
134
See id. at 515 (“[W]hen faced with suspect play, in many clubs the final say is
left to the surveillance director who will review the footage at a later time. What if
he suspects a card bending play, but the cards are long gone? What if the play
warranted different viewing angles, but it’s too late? . . . This is an important
process, but after the fact analysis is often too little, too late.”).
135
Marks, supra note 56, at 30. See also Nev. Gaming Reg. 5.160(2) (2018)
(“The purposes of a casino surveillance system are to assist the licensee and the state
in safeguarding the licensee’s assets, in deterring, detecting and prosecuting crimi-
nal acts, and in maintaining public confidence and trust that licensed gaming is
conducted honestly and free of criminal elements and activity.”); Forte, supra note
11, at 517 (“Outside of the obvious advantages of reviewing suspect play, the big-
gest benefit of surveillance is the deterrent factor. This alone will keep the majority
of the players and employees honest, and keep many cheaters guessing.”).
136
E.g., Nev. Gaming Reg. 5.160(6) (2018) (“[E]ach licensee shall install,
maintain and operate a casino surveillance system in accordance with the casino
surveillance standards adopted by the chairman.”).
137
Nev. Gaming Reg. 5, Attachment 1 (2018) (“The surveillance system of all
licensees operating three (3) or more table games must possess the capability to
monitor and record: (a) Each table game area, with sufficient clarity to identify
patrons and dealers; and (b) Each table game surface, with sufficient coverage and
clarity to simultaneously view the table bank and determine the configuration of
wagers, card values and game outcome.”).
138
Forte, supra note 11, at 166.
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76 Harvard Journal of Sports & Entertainment Law / Vol. 10

game, such as at a nearby slot machine, bar, or even a restaurant.139 By

increasing the distance from the target blackjack game, it creates a greater
angle from which to view the dealer’s hole card.140 The confederate then
signals his agent who is playing at the target game.141 To be sure, it is
unlawful for a player to make a bet using information that is not available to
all players.142 And because the player would be making a bet using informa-
tion not available to all players—namely, the identity of the dealer’s hole
card gleaned by the confederate positioned away from the game—the ex-
press play is cheating, not merely an advantage tactic.143
Now consider a similar strategy employed by casinos. Here, a floor
supervisor becomes suspicious of a blackjack player and calls the surveillance
department to “evaluate” the player.144 The floor supervisor might suspect
that the player is card counting, or, as is often the case, the supervisor just
wants to be thorough to avoid future liability.145 A surveillance operator

139
See id. at 167.
140
See id.
141
See id.
142
Nev. Rev. Stat. § 465.070(2) (2017) (“It is unlawful for any person: To place,
increase or decrease a bet or to determine the course of play after acquiring knowl-
edge, 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 or to aid anyone in
acquiring such knowledge for the purpose of placing, increasing or decreasing a bet
or determining the course of play contingent upon that event or outcome.” (empha-
sis added)); see also Sheriff v. Einbinder, 808 P.2d 22 (Nev. 1984) (unpublished table
decision). For the text of the Nevada Supreme Court’s order, see Arnold Snyder, Is
Spooking Legal?, Blackjack Forum (June 1987), http://www.blackjackforumonline.
com/content/spooking.htm, [https://perma.cc/YU7C-V5SB] (emphasizing that a
player and his confederate did not cheat when glimpsing the dealer’s hole card be-
cause both players were seated at the same table).
143
The film Casino, (Universal Pictures 1995), provides a good depiction of a
similar technique called “spooking.” See Universal Pictures, Casino (1995) –
Cheater’s Justice HD, YouTube (Jan. 29, 2017), https://www.youtube.com/watch?v=
KGp3PrC1CKI, [https://perma.cc/A3G4-R6LQ]. There, the confederate spots the
dealer’s hole card while positioned behind the dealer. See id. The confederate then
sends electronic signals to his agent at the target blackjack table. See id. Unfortu-
nately for the confederate, he winds up with a broken hand courtesy of the casino’s
security staff. See id. For more on spooking, see Snyder, supra note 5, at 311.
144
See Snyder, supra note 5, at 300 (“[The surveillance department] basically
wait[s] for phone calls from the pit, requesting that they pay attention to some
specific player who may be a card counter, or just a big bettor who is unknown to
the pit personnel.”).
145
See id.
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then determines whether the player is counting through a card counting

software program.146
If the surveillance operator determines that a player is counting cards,
the floor supervisor will be notified. At this point, the casino might bar the
person from playing blackjack.147 Alternatively, there are many other coun-
termeasures casinos can implement.148 For example, one option is to “flat-
bet” the player, which restricts him from varying his bets as the composi-
tion of the cards tips in his favor.149 This erases any potential advantage
gained from betting small when the deck’s composition favors the casino or
betting large when the composition favors the player. Another option is
preferential shuffling, which as previously discussed, occurs when the casino
shuffles the cards whenever it wants.150 The ability of a casino to shuffle the
cards when the composition favors the player—which eliminates the player’s

146
Forte, supra note 11, at 518.
147
However, not all jurisdictions permit casinos to bar players solely because
they are engaging in card counting. See, e.g., La. Stat. Ann. 27:27.2(A)(3)(b)
(2018) (prohibiting Louisiana casinos from banning players “for reasons based solely
on the skill level of the person”); Uston v. Resorts Int’l Hotel, Inc., 445 A.2d 370,
376 (N.J. 1982) (holding that New Jersey casinos cannot ban blackjack players
merely because they are counting cards). In these jurisdictions, other countermea-
sures are used to deter card counters, as will be discussed infra.
148
See Cabot & Hannum, supra note 14, at 709 (“Some casinos do not take any
measures to deal with most advantage players, such as card counters, reasoning that
the harm caused does not justify the cost or consequences of taking affirmative
action against the advantage players. Other casinos, however, undertake affirmative
steps against advantage players where legally available, including criminal arrest,
civil exclusion or changing the rules of play.”).
149
See id. (“Other casinos, however, undertake affirmative steps against advan-
tage players where legally available, including criminal arrest, civil exclusion or
changing the rules of play.”). See also Doug Grant, Inc. v. Greate Bay Casino Corp.,
232 F.3d 173, 182–83 (3d Cir. 2000) (noting a New Jersey gaming regulation that
grants “the casinos the authority to lower the betting limit whenever it identifies a
card-counter so that the card-counter will not be able to bet high when the shoe
becomes player-favorable,” as well as a subsequent amendment giving casinos even
more discretion in accepting bets of any size); Snyder, supra note 5, at 88 (describ-
ing the legal kerfuffle between card counters, Atlantic City casinos, and the New
Jersey Casino Control Commission).
150
See supra Part III.A; see also Campione v. Adamar of New Jersey, 714 A.2d
299, 306 (N.J. 1998) (noting that a New Jersey regulation permits casinos to
“shuffl[e]-at-will, which allows casinos to shuffle after any round of play”). How-
ever, this technique is almost always referred to as “preferential shuffling” in casino
parlance. See, e.g., Griffin, supra note 108, at 135.
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78 Harvard Journal of Sports & Entertainment Law / Vol. 10

opportunity to bet big at an advantageous time151—is one of the strongest

countermeasures in the casino’s arsenal.
Regardless of which countermeasure is implemented, the casino has
just benefitted from one of the fundamental requirements imposed on gam-
blers around the world: the prohibition of devices that aid playing strategy.
The first device is the surveillance camera used to monitor the player. And
as previously noted, casinos are generally required to install surveillance sys-
tems.152 The second device is the software program used to detect card
counting. Recall Sheriff, Clark County, Nevada v. Anderson, where the Ne-
vada Supreme Court held that it is unlawful for players to use a card-count-
ing computer because it constitutes a “device” under the State’s anti-device
law.153 However, casinos are free to use such a device to the players’ disad-
vantage.154 Likewise, casinos are also free to use surveillance cameras to the
players’ disadvantage.155 It becomes much easier to see why Robert Nerse-
sian believes that casinos “cheat with the imprimatur of the State.”156 To be
sure, a casino’s use of surveillance equipment and card counting software is
not per se cheating. Instead, making use of such technology to the player’s
detriment—manifested in the form of preferential shuffling or related coun-
termeasure—is what makes the technology problematic.
Let us dig a bit deeper into this scenario. Recall that at the beginning
of this section I explained that players are generally prohibited from making
bets based on information that is not available to all players.157 Moreover,
confederates are prohibited from gathering this information in the first
place—even if the confederate’s agent never makes a bet.158 However, in
our scenario, the casino can easily gather information that is not available to
all players. Consider how blackjack is often dealt in a manner where the
cards are pitched facedown and players are allowed to physically handle the
cards (as opposed to the more common “shoe game,” where cards are dealt
face-up and players may not touch them).159 In these “pitch games,” casinos

151
See Cabot & Hannum, supra note 14, at 710 (“[A]ny advantage created
through card counting, of course, is negated when the deck is shuffled.”).
152
See supra note 105.
153
746 P.2d 643, 644 (Nev. 1987); see supra Part II.A.4.
154
See Snyder, supra note 5, at 300 (noting that surveillance operators may re-
view footage of suspected card counters and input their playing decisions into card-
counting software).
155
See id.
156
Nersesian, supra note 10, at 93.
157
See supra note 142 and accompanying text.
158
Nevada only requires that the “purpose” of gathering such information is to
make a bet. Nev. Rev. Stat. § 465.070(2) (2017).
159
See Forte, supra note 11, at 612 (defining “pitch”).
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2019 / Casino Countermeasures 79

might use procedures whereby some cards are never exposed to other play-
ers.160 This is significant because the more cards that remain hidden, the
harder it becomes for card counters to determine their advantage. But when
casinos monitor games through surveillance cameras, they can identify these
hidden cards. And when casinos identify these hidden cards, they can deter-
mine the advantage more accurately than the card counter can. This directly
violates yet another fundamental law imposed on gamblers: the prohibition
on the gathering and use of information that is not available to all players.
What makes the casinos’ use of this information particularly egregious
is the power dynamics between players and casinos. The power imbalance
between the casual, unsophisticated player and the experienced, sophisti-
cated casino should cause us to rethink what countermeasures are acceptable.
The common-law doctrine of unconscionability has long held that extreme
one-sided contracts in favor of the party with the superior bargaining power
might be invalid.161 Likewise, Professors Cabot and Hannum suggest that
since the overriding principle of gaming regulation is that the games are fair
and honest, a casino’s use of superior technology can “raise fundamental
issues regarding the honesty and fairness of the games themselves sufficient
to justify regulatory intervention.”162 Here, a casino’s use of surveillance
cameras and card counting software might justify regulatory intervention
because it violates a basic tenet imposed on all players: no use of informa-
tion that is not available to all players.

C. Shuffle Machines and Dealing Shoes

Another ubiquitous countermeasure is the shuffle machine. First intro-

duced in Las Vegas casinos in 1992, the inspiration for these machines came
in response to the threat of card counting.163 Shuffle machines mimic the
actions of traditional shuffling by human dealers. However, these machines
generally do not shuffle cards faster than humans. Nor are the machines
necessarily more thorough. Instead, the machine acts as an extra pair of
hands: While the dealer is attending to the game in progress, the machine

160
See Zender, supra note 68, at 105 (explaining three situations when a casino
can avoid exposing cards in order “to confuse the counter by not allowing him to
see all the cards played”).
161
See, e.g., Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir.
1965).
162
Cabot & Hannum, supra note 14, at 752.
163
Shuffle Master Inc. History, FundingUniverse.com (Oct. 28, 2017), http://
www.fundinguniverse.com/company-histories/shuffle-master-inc-history/, [https://
perma.cc/UM88-S2H3].
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80 Harvard Journal of Sports & Entertainment Law / Vol. 10

shuffles a different deck of cards. And when the cards that are in play have
been depleted, the dealer exchanges those cards for the freshly shuffled deck.
Without a shuffle machine, there would be downtime as the dealer manually
shuffles the deck. This downtime can be quite costly.164
The potential problem with shuffle machines arises because some ma-
chines can actually identify the values of the cards. For example, the popu-
lar MD3 shuffle machine is capable of shuffling up to eight decks at a time
and “can read and verify every card being shuffled.”165 This has two imme-
diate implications. First, the casino will know the precise order of every
card in the deck before they are dealt. This recreates a classic form of cheat-
ing that has long been considered unlawful if implemented by players: the
“cold deck.”166 This scam involves the player switching an entire deck (or
decks) for a deck that has been set in a prearranged order.167 Likewise, a
shuffle machine that knows the order of every card effectively creates a cold
deck on the casino’s behalf.168 The power imbalance could not be starker: It
would clearly be unlawful for a player to “read and verify” every card as the
deck was being shuffled. But casinos are allowed to do this with impunity,
and most players have no idea that this is going on. If a casino knows the
order of the deck, it can easily deduce the point at which the composition of
the cards favors the players in blackjack. The casino can then engage in
preferential shuffling by shuffling earlier than expected and erasing any pos-
sible player advantage.169 Indeed, it was this very situation that led to a
legal challenge of a casino’s use of the MindPlay electronic system. The
complaint alleged that the system “informed the casino that the deck or
shoe had become favorable to the plaintiff and unfavorable for the [casino]”

164
See Bill Zender, Casino-ology: The Art of Managing Casino Games
10–12 (2008) (demonstrating that in blackjack, the difference between a two-min-
ute manual shuffle and a 1.25-minute manual shuffle can result in a difference in
annual revenue of hundreds of thousands of dollars for the casino).
165
MD3, Scientific Games, https://www.sggaming.com/Shuffle-Master/Utili-
ties/Shufflers/Baccarat-Products/MD3, [https://perma.cc/CTR6-M576].
166
See Forte, supra note 11, at 74 (describing the cold deck as “[t]he most
infamous of all gambling scams”); see also Zender, supra note 27, at 74–75
(describing how casinos can cheat players by dealing from a deck that has already
been sorted into a prearranged order).
167
See Forte, supra note 11, at 74.
168
The order of the cards will not be materially disturbed when the player cuts
the deck. Indeed, the chain of cards remains the same—only the starting point
changes.
169
See supra Part III.A (providing more information about preferential shuffling).
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2019 / Casino Countermeasures 81

and then shuffled the deck whenever it was in the plaintiff’s favor.170 The
case was eventually dismissed because the court did not believe MindPlay
worked as described in the complaint.171 But preferential shuffling is always
a possibility if a casino’s shuffle machine can discern the order of the deck.
The second implication of a device that can “read and verify” the iden-
tities of the cards is that the cards themselves must be marked. For exam-
ple, the Angel Eye system openly advertises that its dealing shoe reads the
markings off a proprietary style of playing card.172 This mimics the tradi-
tional marked card scam that is unlawful in every jurisdiction. But yet
again, casinos do not receive any scrutiny for this practice. Like the shuffle
machine that can identify the order of the deck, a dealing shoe that can read
marked cards can determine when players have an advantage and notify the
casino to shuffle accordingly.

IV. Casino Countermeasures and Decreased Tax Revenue

Many countermeasures are the product of a bygone era—one where

paranoia was rampant and often unjustified. Despite the absence of a ratio-
nale, many countermeasures survive today. As previously demonstrated,
some casino countermeasures potentially cross the line into cheating terri-
tory. At the very least, these countermeasures violate fundamental duties of
fairness in light of the power imbalance between players and casinos. But
these countermeasures can impose additional far-reaching, unfavorable ef-
fects on other entities. Indeed, many countermeasures are counterproductive
because they slow down games and deprive the state and municipality of tax
revenue.173 Eliminating these countermeasures will lead to greater revenues
for casinos and the state. Moreover, players will be happier since many
countermeasures do nothing but alienate and irritate them.

170
Gambler Files Lawsuit Over Card-Counting System, Las Vegas Sun, (Oct. 19,
2004), https://lasvegassun.com/news/2004/oct/19/gambler-files-lawsuit-over-card-
counting-system/, [https://perma.cc/RZ3U-VXEZ].
171
See Schnell-Davis, supra note 124, at 332.
172
Angel Eye Electronic Security System, Angel Eye Playing Cards Co., Ltd.,
http://www.angelplayingcards.com/en_casino/engineering1.php, [https://perma.cc/
L72N-J8MV].
173
A jurisdiction’s gaming tax revenue is generally derived from a casino’s gross
gaming revenue. See, e.g., Nevada Gaming Summary, UNLV Center for Gaming
Research (2014), http://gaming.unlv.edu/abstract/nv_main.html, [https://
perma.cc/L4DF-DTKK] (noting that Nevada’s gaming taxes are “approx. 7.75%
effective tax rate, with a 6.75% tax on gross gaming revenues and about 1 percent
of taxes in fees”).
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82 Harvard Journal of Sports & Entertainment Law / Vol. 10

Noted casino consultant Bill Zender has demonstrated that the gain of
merely a few additional blackjack hands per hour can increase annual reve-
nue by hundreds of thousands of dollars.174 Clearly, “[t]he more hands
dealt, the greater revenue the casino achieves . . . .”175 But when consider-
ing how to speed up games, casino managers must carefully balance game
protection considerations and customer satisfaction concerns with the gain
in revenue produced by a more streamlined dealing procedure.
Zender suggests that the costliest countermeasure to casinos’ bottom
line is not dealing deep enough into each blackjack shoe.176 Consider a
typical blackjack game dealt from a shoe that holds six decks of cards. Many
casinos will typically only deal around 4.5 decks.177 Casinos fear that if
more cards are dealt, casinos may be vulnerable to card counters (remember,
card counters have a better gauge of their advantage as more cards are
dealt).178 However, the concern over card counters is vastly disproportionate
to the revenue that casinos relinquish by not dealing deeper into the shoe.179
Just as casinos avoid downtime, players do not like to sit around and wait
during a shuffle.180 Reducing this downtown will make all parties happier,
especially considering the exaggerated threat that card counting poses to

174
See Zender, supra note 164, at 4–8; see also Zender, supra note 68, at 107
(“Even in a medium size casino, if the house could gain one more round dealt per
table each hour, they would win an additional $100,000 annually.”). But see Rich-
ard Munchkin, Interview—Mike Patterson VP of Table Games at Barona Casino, Rich-
ard Munchkin Blog (Nov. 6, 2012), http://www.richardmunchkin.com/2012/11/
interview-mike-patterson-vp-of-table.html, [https://perma.cc/ND2M-CCBT]me (“I
am not a big fan of time and motion studies. . . . I tell our dealers to slow down and
make the game fun. The premise that if you deal faster you will make more money
only works if you have an unlimited supply of players with an unlimited
bankroll.”).
175
Zender, supra note 164, at 9.
176
See id. at 15.
177
See id.
178
See id. at 20 (“The industry belief at that time was the deeper the deck pene-
tration, the more money you would lose to card counters (and it still is today, even
though there’s plenty evidence to the contrary).”).
179
See id. at 21 (“[A]ny executive who deals less than 75% of the multiple-deck
shoe is costing his operation more revenue than a busload of ‘phantom’ card coun-
ters can possibly win (85% deck penetration or greater is optimal).”); Zender,
supra note 68, at 107 (“An early shuffle point may save a casino $10,000 to $20,000
from possible counters per year, but, it most likely will cost them $200,000 in
wasted time.”).
180
See, e.g., Forte, supra note 11, at 114 (“After the release of Beat the Dealer, it
took little time for a then virgin industry to flip out, literally, to the possibility of
skillful play. Drastic countermeasures could be found everywhere; shuffle after
every hand, double on eleven only, no splitting aces, and multiple decks. But the
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2019 / Casino Countermeasures 83

casinos. Indeed, Zender recommends moving the cutoff point to 5.5 decks
to maximize revenue.181
Other countermeasures can likewise be harmful to a casino’s revenue.
Until recently, many casinos offering “pitch” blackjack games182 would use
a procedure where an outgoing dealer would hand the deck to the incoming
dealer if a round ended before the deck is depleted.183 This procedure allows
the game to continue without the need for an early shuffle.184 However,
casinos have been moving away from this procedure because of their fear that
allowing dealers to temporarily touch hands would facilitate cheating.185
But there is no scam that could target this procedure that would not be
possible anyway.186 Instead, the retreat from this productive procedure is
yet another unjustified response that only serves to slow down the game.
There are many countermeasures that similarly slow down games and
reduce revenue.187 Why do billion-dollar properties continue to implement
them? Casino consultant Steve Forte suggests that it stems from a mindset
held by many executives: avoid rocking the boat.188 After all, if one were to
make a procedural change and the casino were to coincidentally lose money
one night (it happens), it would not be unreasonable to fear that the casino’s
management would associate the loss with the procedural change.
Does this attitude necessitate gaming regulatory agencies to step in
and mandate certain procedures? Likewise, should these agencies prohibit
certain countermeasures? It would not be new for an agency to do so. In-
deed, New Jersey gaming law is replete with regulations controlling every
minutia of a casino’s shuffle.189 And there is clearly a need for casinos to
eliminate their unproductive countermeasures that do nothing other than
slow down games and reduce tax revenue. On the other hand, should this
job be left to agencies that often employ people with little to no gaming
experience? There is much debate over what countermeasures are net bene-
fits to casinos. It is easy to imagine an agency mandating procedures that
end up doing more harm than good. After all, many of these unproductive

public revolted, business dropped off significantly, and the industry was forced to
soften their stand.”).
181
See Zender, supra note 164, at 20–21.
182
See supra notes 159–60 and accompanying text (providing an explanation of
pitch games).
183
See Forte, supra note 11, at 524.
184
See id.
185
See id.
186
See id.
187
See, e.g., Zender, supra note 164, at 9–16; Forte, supra note 11, at 523–26.
188
Forte, supra note 11, at 526.
189
See, e.g., N.J. Admin. Code § 13:69F-2.5 (2012).
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84 Harvard Journal of Sports & Entertainment Law / Vol. 10

countermeasures have withstood the test of time—and agency capture is

always a fear with any regulatory body.190 Or maybe there should be some-
thing in between—perhaps a system where it is easy for casinos to request
exemptions after providing some sort of reasonable showing to the agency.
While the proper solution is not simple (nor clear), it is evident that many
countermeasures are dragging down gaming revenues.

V. Conclusion

Casinos implement countermeasures for a variety of reasons. Some are

thought to prevent cheating and advantage play. Others are thought to
speed up games and increase revenue. Part II introduced many classical
cheating techniques used by players and how courts have adjudicated them.
Part III discussed various countermeasures and why they might be consid-
ered cheating in light of the power imbalance between casinos and players.
Part IV considered whether casinos should streamline countermeasures,
since many of them serve only to slow down games and reduce casino and
tax revenues. This Article has comprehensively demonstrated that many
countermeasures are unjustified and unproductive.

190
See, e.g., Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Insti-
tutional Design, 89 Tex. L. Rev. 15, 17 (2010) (noting that “[t]his kind of lopsided
pressure can be seen in a range of areas, from criminal justice to consumer
protection”).