Studies in European Economic Law and Regulation 1 Simon Planzer Empirical Views on European Gambling Law and Addiction Studies in European Economic Law and Regulation Volume 1 Series Editor Kai Purnhagen Wageningen UR and Erasmus University Rotterdam Editorial Board Alberto Alemanno, HEC Paris Mads Andenaes, University of Oslo Stefania Baroncelli, University of Bozen Franziska Boehm, Westfälische Wilhelms-University Münster Anu Bradford, Columbia Law School Michael Faure, Maastricht University/Erasmus University Rotterdam Jens-Uwe Franck, Ludwig-Maximilians-University Munich Geneviève Helleringer, University of Oxford Christopher Hodges, University of Oxford Lars Hornuf, Ludwig-Maximilians-University Munich Moritz Jesse, University Leiden Marco Loos, University of Amsterdam Petros Mavroidis, Columbia Law School/European University Institute/University of Neuchatel Hans Micklitz, European University Institute Giorgio Monti, European University Institute Florian Möslein, University of Bremen/Munich Centre on Governance, Communication, Public Policy and Law Dennis Patterson, European University Institute Wolf-Georg Ringe, University of Oxford/Copenhagen Business School Jules Stuyck, Katholieke Universiteit Leuven Bart van Vooren, University of Copenhagen For further volumes: http://www.springer.com/series/11710 Simon Planzer Empirical Views on European Gambling Law and Addiction Simon Planzer Lecturer in Law University of St.Gallen HSG St.Gallen , Switzerland ISSN 2214-2037 ISSN 2214-2045 (electronic) ISBN 978-3-319-02305-2 ISBN 978-3-319-02306-9 (eBook) DOI 10.1007/978-3-319-02306-9 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2013954373 © Springer International Publishing Switzerland 2014 T his work is subject to copyright. 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Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) Foreword Science, Public Policy and Law: Considering the Case of Gambling Empirical Views on European Gambling Law and Addiction Planzer’s E mpirical Views on European Gambling Law and Addiction addresses an important and too often ignored area of study: the intersection of science and law. Gambling, like drugs, holds the potential to adversely infl uence the public health and welfare. Gambling can affect personal and community activities in both favorable and unfavorable ways. The policies that government, industry, and other stakeholders employ to minimize the adverse consequences and maximize the benefi ts of gambling are many and diverse. At some point, every member of a community experiences the consequences of public policy and how legislators, lawyers, and judges operationalize these policies into law. This is certainly true for gamblers. However, few people have been suffi ciently brave to confront the law directly by challenging how well it advances the public policy goals that guided its original development and purpose. P olicies represent broad grassroots movements or leader-based initiatives that often refl ect sociocultural values; laws are legally enforceable rules that often refl ect the expression of policies. Policies must observe and obey laws. Policy movements often lead to changes in the law (e.g., civil rights). In this sense, policies are the landscape against which legal architecture develops and evolves. Public policies and the laws associated with such policies hold the promise, if not the obligation, to advance and protect the public health and welfare. Unfortunately, the vast majority of policies and laws are generated in the absence of guiding scientifi c evidence that can inform stakeholders about the effi cacy of the law. This is particularly evident in the area of gambling. For example, jurisdictions that permit gambling increasingly require the purveyors of gambling to develop and offer responsible gaming programs v vi Foreword (e.g., self-exclusion) although the evidence providing support for these p rograms is mixed.1 I ncreasingly, policy makers, lawmakers, clinicians, and members of the public alike have been demanding more evidence-based practices. Despite this current fascination with evidence-based practice, the relationship between science and the practice of promulgating both policy and law is a curious one. Like their clinician counterparts, the makers of public policy and law tend to trust their instincts more than scientifi c evidence. Consider clinicians: The majority of therapists believe that the way to be a good therapist is to do everything you do intuitively… They do it by the ‘seat of their pants’… The same group of people, however, says that the ultimate goal of therapy is for people to have conscious understan ding – insight into their own problems. So therapists are a group of people who do what they do without knowing how it works and at the same time believe that the way to really get somewhere in life is to consciously know how things work! 2 Similarly, for example, in the UK, stakeholders have long debated immigration policy. Recently, they have recognized the need for improved evidence as they continue this debate. Critics have noted that there are “data gaps and limitations; analysis g aps and limitations; and uncertainties in the conclusions emerging from the available analysis.”3 These fundamental concerns about the quality of information suggest, perhaps, that like the conduct of therapy, the UK immigration policy debate has been guided more by ‘seat of the pants’ instinct than by scientifi c evidence. In this book, Planzer argues that science and scientifi c evidence represent fundamental bedfellows that must replace – or at the very least inform – instinct and personal values. Planzer suggests that science can help to guide the development and implementation of public policy through the application of case law. He shows that scientifi c evidence has direct relevance for legal considerations. Planzer shows that scientifi c evidence is more than something just nice to have; it is essential for policy makers, lawyers, and lawmakers – and everyone who interprets the law. This is a bold, courageous, and comprehensive undertaking. The implications of his effort are many. D espite his primary focus on gambling, Planzer’s argument about the essential value of science for the law and lawmaking also applies to other areas of human conduct. Gambling, like so many other complicated patterns of human activity, tends to encourage the emergence of conventional wisdoms. Consider the case of alcohol prohibition in the US and its presumed effects and unintended consequences on public 1 LaBrie, R.A., Nelson, S.E., LaPlante, D.A., et al. (2007). Missouri casino self-excluders: Distributions across time and space. J ournal of Gambling Studies, 23 (2), 231–243; Nelson, S.E., Kleschinsky, J.H., LaBrie, R.A., et al. (2010). One decade of self-exclusion: Missouri casino self-excluders four to ten years after enrollment. Journal of Gambling Studies, 26(1), 129–144. 2 Bandler, R., & Grinder, J. (1979). Frogs into princes: Neuro linguistic programming. Moab: Real People Press, p. 6. 3 The Migration Observatory (2011). Top Ten Problems in the Evidence Base for Public Debate and Policy-Making on Immigration in the UK (pp. 1–15): University of Oxford. Foreword vii health.4 Personal belief systems sometimes rest upon logical expectations and, perhaps, even a kernel of evidence, but, more often, these traditional beliefs are derived from personal bias, anecdote, and folklore. These synergistic infl uences provide the ingredients necessary for the emergence and easy acceptance of moral judgments that can compromise rigorous inquiry. In many instances, the implicit acceptance of moral judgments can prevent lawyers and scientists alike from testing their assumptions about topics of interest. Some of these conventional ideas – regardless of evidence – have garnered suffi cient strength to infl uence the development and application of public policy. For example, as with drug, alcohol, and driving under the infl uence (DUI) policies,5 evidence for effective gambling policy is rare. What makes it so diffi cult to develop a scientifi c foundation for developing public policies for gambling? I t is not simple or straightforward to advocate for science-guided public policy – whether gambling-related or otherwise. Policy makers and scientists conceptualize issues very differently. They have different languages, goals, and styles. These differences refl ect a wide range of values. For example, policy makers seek relatively immediate, tangible solutions that will endure. Scientists seek advances of almost any size that can move current understanding to a more advanced level. Policy makers seek certainty; scientists value doubt. Policy makers see evidence as concrete and enduring; scientists see evidence as constructed and temporary. Planzer’s E mpirical Views on European Gambling Law and Addiction seeks to bridge these two perspectives and the unique vocabularies common to each. It is easy to see that policy makers, lawmakers, and scientists consider and apply evidence in very different ways. Further complicating this situation, scientists are more comfortable than lawmakers living in the gray area, marked with uncertainty and doubt. Judges in particular face the diffi culty of being obligated to make decisions by applying the law; they cannot enjoy the privilege of the gray area. In turn, scientifi c doubt gives rise to fresh research questions and new ways to answer them. Lawyers as well as law and policy makers need a system for determining the strength of evidence. For example, scientists are used to evaluating research designs for what these strategies can and cannot accomplish. Cross-sectional studies, for example, cannot inform stakeholders about the incidence (i.e., new cases) of disease or the duration of illness. To gather meaningful evidence about incidence and duration – and therefore the impact of social events – we need prospective longitudinal studies. Unfortunately, these studies take time – often more time than policy makers, lawyers, and judges have available to make their decisions. Muddling matters, scientists – often in need of research funding – are too willing to enable public policy makers’ need for certainty and evidence of any type. Seeking funds more than truth, investigators misguidedly suggest that alternatives to prospective longitudinal research can answer questions about, for example, 4 Blocker, J.S. Jr. (2006). Did prohibition really work? Alcohol prohibition as a public health innovation. American Journal of Public Health, 96( 2), 233–243. 5 E .g., Strang, J., Babor, T., Caulkins, J., et al. (2012). Drug policy and the public good: Evidence for effective interventions. Lancet, 379( 9810), 71–83. viii Foreword gambling impact. Policy makers frequently choose the seemingly least expensive alternative (e.g., cross-sectional research design) as a way of providing at least some kind of evidence that will fulfi ll a legal mandate; the result of this situation is that both policy makers and scientists have limited insight into the very nature and course of gambling-related disorders. Policy makers proudly announce that they are going to fund innovative and comprehensive research; in their quests to garner grant support for their project, scientists offer simple, less expensive, but incorrect designs for the questions of importance. The result of this choreography between funders, scientists, and limited resources is that stakeholders often choose the wrong design and everyone ends up with the same old research, leaving policy makers and the public with the same old questions. This pseudoscience political dance produces a black eye for both scientists and public policy makers alike. P lanzer reminds us that the legal world risks problems – similar to those confronted by science – when it applies the law without examining the evidence that supports the assumptions upon which the law rests. Lawmakers and judges alike can advance the application of law by maintaining a more critical, perhaps even scientifi c attitude toward their personal beliefs and how these might infl uence the law. Planzer’s Empirical Views on European Gambling Law and Addiction encourages us to take pause and reconsider the relationship between science and law, as well as between the scientist and the lawmaker. This is a rare opportunity indeed that will rattle convention to its core. It offers a vision for a different kind of public policy, informed by a novel kind of science. Planzer’s view encourages a new era of cooperation among lawmakers, scientists, and gambling industry executives. To advance an evidence-based system for promulgating gambling-related policy, everyone involved in the manufacture of science and policy will have to agree on target benchmarks and objectives that we can measure and evaluate.6 The typical tactics used by vested ideological, political, fi nancial, and emotional interests to attack science and limit evidence-based policy (e.g., economic manipulation, delay, hiding identities) will require careful management.7 Planzer deftly demonstrates that using science can change the gambling playing fi eld as well as how the games are played. No longer can we simply accept gambling policy and law at face value; now is the time to use science to challenge assumptions and assure that we establish and interpret the law in ways consistent with the best available evidence. For example, many years ago, my colleagues and I described the fundamental elements of Responsible Gambling programs.8 Now it is time to evaluate the prevalence and effi cacy of these suggestions to determine their value to the public health and welfare. Too often jurisdictions and companies call for features of a responsible gambling program that have yet to demonstrate benefi t, especially in 6 E .g., Bogenschneider, K., & Corbett, T. (2010). E vidence-based policymaking: Insights from policy-minded researchers and research-minded policymakers. New York: Routledge. 7 Rosenstock, L., & Lee, L.J. (2002). Attacks on science: The risks to evidence-based policy. American Journal of Public Health, 92( 1), 14–18. 8 Blaszczynski, A., Ladouceur, R., & Shaffer, H.J. (2004). A science-based framework for responsible gambling: The Reno model. Journal of Gambling Studies, 20( 3), 301–317. Foreword ix consideration of associated costs and burdens. 9 Today we see a similar situation as the European Union debates policies designed to minimize harm related to Internet gambling despite having limited evidence about the extent of gambling-related problems and the determinants responsible for these diffi culties.1 0 Ultimately, Planzer’s book encourages the development of science-minded policy makers and policy-minded scientists1 1 who are willing to fl y less by the ‘seat of their pants’ and more by using the guidance that science can provide to help establish the questions of importance and the methods by which we can evaluate them. Unfortunately, the genie is out of the bottle: gambling has expanded worldwide, law and policy makers are trying to catch up, and scientists are lagging behind policy makers. Planzer’s work inspires a different strategy. The question now is whether policy makers, lawyers, judges, and scientists will have the mettle and determination to follow his lead. Harvard Medical School, Boston Howard J. Shaffer Division on Addiction, The Cambridge Health Alliance June 17, 2013 Dr. Shaffer is an Associate Professor at Harvard Medical School and the Director of the Division on Addiction at the Cambridge Health Alliance, a teaching affi liate of Harvard Medical School. I would like to thank Dr. Heather Gray for her helpful and wise comments regarding earlier versions of this foreword. 9 E.g., Gostin, L.O. (2000). Public health law in a new century. Part III: Public health regulation: A systematic evaluation. Journal of the American Medical Association, 283( 23), 3118–3122. 10 Planzer, S., Gray, H.M., & Shaffer, H.J. (2014). Associations between national gambling policies and disordered gambling prevalence rates within Europe. I nternational Journal of Law and Psychiatry, 37 (2), advance online publication 23 December 2013. 11 Bogenschneider, K., & Corbett, T. (2010). Evidence-based policymaking: Insights from policy-minded researchers and research-minded policymakers. New York: Routledge.