This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against gambling while allowing more socially acceptable forms of speculation to pass muster.
Yale Journal of Law and the Humanities
Joshua C. Tate, Gambling, Commodity Speculation, and the Victorian Compromise, 19 Yale J.L. & Human. 97 (2007).