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Prof. Glenn Smith on the Recent Sports Betting Ruling by the U.S. Supreme Court

Prof. Glenn Smith

The high-profile Supreme Court ruling in Murphy v. National Collegiate Athletic Association, in which 6 Justices paved the way for state and local governments and private entities to participate in sports-betting enterprises, is noteworthy for three reasons, writes California Western School of Law’s Prof. Glenn Smith in a commentary for the Jurist.

First, Murphy is a textbook example of a dynamic often seen in law in general and constitutional law in particular: the significant gap between the social, economic (and, to some eyes, moral) implications of a controversy and its key legal dimensions once it ends up in court. Second, Murphy shows that what ultimately divides justices when the Court finally hands down a ruling may be quite different from the seemingly "big" issue going into oral argument.

And as a law professor who has taught and written about statutory construction in the shadow of constitutional disputes, I see Murphy as an engaging vehicle for exploring "severability," the subtle yet important secondary issue often arising when one or more parts of a law are declared unconstitutional. Deciding about severability can be an especially challenging judicial assignment. And, as Justice Thomas noted in his Murphy concurrence, especially difficult issues about appropriate judicial roles arise.

Media coverage of Murphy emphasized the practical implications of the ruling in green-lighting sports betting. This is not surprising for, as Justice Alito's majority opinion noted, "the legalization of sports gambling is a controversial subject." As Alito put it: "Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports."

Opponents' concerns prevailed in 1992 when Congress enacted the Professional and Amateur Sports Protect Act (PASPA). The specific PASPA section disputed in Murphy [28 U.S.C. § 3702(1)] made it unlawful for almost all state or local governments (except Las Vegas and a couple of others with existing sports-betting regimes) to "sponsor, operate...promote...or authorize by law or compact" a sports-gambling scheme.

Read the full article here: Glenn C. Smith, Gambling on Congressional Intent, JURIST - Academic Commentary, June 8, 2018,