Sports Betting Has an Equal Sovereignty Problem

Duke Law Journal Online 67 1-39 (2017)

FSU College of Law, Public Law Research Paper No. 856

Posted: 15 Sep 2017

See all articles by Ryan M. Rodenberg

Ryan M. Rodenberg

Florida State University - College of Education; Florida State University - College of Law

John T. Holden

Oklahoma State University

Date Written: 2017

Abstract

We find PASPA’s partial and non-uniform ban on state-sponsored sports wagering to run afoul of the equal sovereignty doctrine’s general constraints as set forth in Shelby County and Northwest Austin. PASPA also fails equal sovereignty scrutiny for two other narrower reasons. First, for a law motivated to address a “national problem” with no geographic borders, PASPA’s various carve-outs for no fewer than nine states are irrational. Not only does the discrimination manifest itself between grandfathered states and non-grandfathered states, but there is also an unconstitutional differentiation between Nevada and the other exempt states. Second, PASPA’s grandfathered exceptions are perpetual in nature, making them more suspect than the temporary provisions of the Voting Rights Act ruled unconstitutional by the Supreme Court in Shelby County. If the equal sovereignty question is presented to the Supreme Court in the current Christie II litigation or a later sports gambling-specific dispute, the appropriate remedy would be to sever out § 3704’s differential grandfather clause, not eviscerate § 3702’s blanket ban. Such a remedy would be an unwelcome result for New Jersey and Nevada, but a correct application of the equal sovereignty doctrine vis-à-vis PASPA.

Keywords: Sports Gambling, Equal Sovereignty, PASPA, Professional and Amateur Sports Protection Act, Constitutional Law

JEL Classification: K00, K10, K19, K20, K23, K29, K30, K39, K40, K49, L50, L59, L80, L83, L89

Suggested Citation

Rodenberg, Ryan M. and Holden, John, Sports Betting Has an Equal Sovereignty Problem (2017). Duke Law Journal Online 67 1-39 (2017), FSU College of Law, Public Law Research Paper No. 856, Available at SSRN: https://ssrn.com/abstract=3036672

Ryan M. Rodenberg (Contact Author)

Florida State University - College of Education ( email )

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Tallahassee, FL 32306-4450
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850-644-0974 (Fax)

HOME PAGE: http://education.fsu.edu/faculty-and-staff/dr-ryan-rodenberg

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-645-9535 (Phone)
850-644-0974 (Fax)

HOME PAGE: http://education.fsu.edu/faculty-and-staff/dr-ryan-rodenberg

John Holden

Oklahoma State University ( email )

201 Business Building
Stillwater, OK 74078-0555
United States

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