"The Law of the Claw" -- The Legal Issues
Prof. Michael Dube's law review article, "The Law of the Claw," will be published in the Arkansas Law Review (Volume 80, Issue 1).
"The Law of the Claw" is a fascinating article about legal issues involving mechanical claw machines at amusement parks, carnivals, restaurants and other venues. These machines are arguably a form of gambling which raises a number of considerations for law and policy, especially since kids are the customers. Below is the abstract:
Modern mechanical claw machines—amusements enticingly inviting consumers to pay money in exchange for a chance to win a stuffed animal or similarly fuzzy prize—are arguably in the nature of gambling devices pitched to children.
Despite this, legal scholars have taken little to no interest in the novel issues inhering in these machines’ design, placement, and operation. Nor have they previously identified contract law as bearing upon these machines.
This Article seeks to remedy that. Part I details the rise and fall of what I call the Golden Age of Claw Machine Jurisprudence, which began in the early 1930’s amidst the Great Depression and lasted roughly a decade.
In an elaborate body of long-forgotten case law, courts routinely determined that chance as opposed to skill predominated in the operation of claw machines, or at a minimum chance could thwart skill in their operation, thereby bringing such machines within the realm of gambling devices interdicted by the criminal law.
Part II in turn details the rise and fall of my Second Golden Age of Claw Machine Jurisprudence, which began in 1951 when Congress passed legislation that led to federal seizures of claw machines and forfeiture proceedings, and ended a decade later, when a laissez-faire regulatory attitude began to take hold.
Ultimately, many state legislatures passed laws affirmatively exempting claw machines from the definition of gambling device. Part III shifts focus to invoke both classic cases involving minors’ disaffirmance of contracts and recent cases from our current electronic age, and analyzes whether the quiet power of voidability might pick up where brasher statutory protections left off.
I ultimately make the historian’s case for context rather than a normative case for regulation; indeed, I argue not for the elimination or even stricter regulation of claw machines, a scourge to some and a salve to others, but instead for an understanding that they operate within a larger and richer legal framework than previously understood. This context is both the point and the prize.
