UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 95-5022 
____________

AYHAN HAKIMOGLU,
Appellant 

v.

TRUMP TAJ MAHAL ASSOCIATES;
TRUMP TAJ MAHAL, INC.;
DONALD TRUMP; THE TRUMP TAJ 
MAHAL CORPORATION; TM/GP 
CORPORATION

              

No. 95-5087 
______________

AYHAN HAKIMOGLU,
Appellant
 
v.

BOARDWALK REGENCY CORP.
____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil Nos. 93-02084 and 93-01874)
____________________

Argued:  July 24, 1995
Before:  BECKER, NYGAARD, and ALITO, Circuit Judges

(Opinion Filed: November 20, 1995)

____________________

			Michael M. Mustokoff, Esq. (Argued)
			Ronald F. Kidd, Esq.
			Teresa N. Cavenagh, Esq.
			Duane, Morris & Heckscher
			4200 One Liberty Place
			Philadelphia, PA 19103-7396

			Counsel for Appellants

			
  			


			Gerard W. Quinn, Esq. (Argued)
			Lloyd D. Levenson
			Cooper, Perskie, April,
			Niedelman, Wagenheim & Levenson
			1125 Atlantic Avenue
			Suite 320
			Atlantic City, New Jersey 08401-4891

			Counsel for Trump Taj Mahal Associates,
			Trump Taj Mahal, Inc, Donald Trump,
			The Trump Taj Mahal Corporation,
			TM/GP Corporation

            Robert L. Hollingshead, Esq. (Argued)
			Joy M. Sperling, Esq.
			Pitney, Hardin, Kipp & Szuch
			Post Office Box 945
			Morristown, New Jersey 07962-1945

			Counsel for Boardwalk Regency

                     ____________________

OPINION OF THE COURT
____________________


ALITO, Circuit Judge:

	
	This case presents the question whether under New 
Jersey law a casino patron may recover from a casino for 
gambling losses caused by the casino's conduct in serving 
alcoholic beverages to the patron and allowing the patron to 
continue to gamble after it becomes obvious that the patron 
is intoxicated.  
	The plaintiff in this case, Ayhan Hakimoglu, filed 
two separate actions in the United States District Court for 
the District of New Jersey against defendants associated 
with two Atlantic City casinos.  Invoking the district 
court's diversity jurisdiction, his complaints alleged that 
the defendants had "intentionally and maliciously enticed 
him" to gamble at the casinos on numerous occasions by 
providing him with free alcoholic beverages and other 
amenities; that while he gambled he was served free 
alcoholic beverages until he became intoxicated; that after 
he became "visibly and obviously intoxicated" the defendants 
"invited and permitted him to continue to gamble in that 
condition" for lengthy periods; and that he consequently 
incurred "substantial gambling losses."  Asserting claims 
for negligence, intentional and malicious conduct, and 
unjust enrichment, he sought to recover compensatory and 
punitive damages, as well as other relief.
 	In both cases, the district court dismissed the 
plaintiff's claims for failure to state a claim on which 
relief could be granted.  The court issued a detailed 
published opinion in one case, Hakimoglu v. Trump Taj Mahal, 
876 F.Supp. 625 (D.N.J.), and it relied on this opinion in 
the other.  Although the defendants' counterclaims for 
gambling-related debts had not been completely adjudicated, 
the court directed the entry of final judgment on the 
plaintiff's claims under Fed. R. Civ. P. 54(b).  The 
plaintiff appealed in both cases, and the appeals were 
consolidated. 
	Our task in this appeal is to predict whether the 
Supreme Court of New Jersey would recognize claims such as 
those asserted by the plaintiff.  Unfortunately, we must 
make this prediction without specific guidance from the New 
Jersey appellate courts, for neither the Supreme Court of 
New Jersey nor the Appellate Division has addressed the 
question that is now before us or any closely related 
question.  If New Jersey law, like that of some other 
states,[fn1]  permitted us to certify the question at issue 
to the Supreme Court of New Jersey, we would seek to do so 
here, because the question is both difficult and important.  
New Jersey law, however, does not allow such certification, 
and therefore we are relegated to predicting what the 
Supreme Court of New Jersey would do if it were confronted 
with this question.[fn2]   
	While we are required to venture this prediction 
and while we recognize the need to issue a published opinion 
for the guidance of the district courts in the circuit, we 
understand that our decision here is unlikely to have -- and 
should not     have -- lasting precedential significance.  
We expect that claims such as those advanced by the 
plaintiff in this case will work their way up through the 
New Jersey court system and that the New Jersey appellate 
courts will provide a definitive answer to the question 
before us.  For this reason and because most of the chief 
arguments on both sides of this question have already been 
set out in excellent published district court opinions, we 
do not find it necessary to engage in a lengthy discussion 
here. 	 The opinion in GNOC v. Aboud, 715 F. Supp. 644 
(D.N.J. 1993), argues forcefully that the New Jersey Supreme 
Court would recognize claims like those in this case.  By 
contrast, the published opinion of the district court in one 
of the cases now before us and the opinion in Tose v. Greate 
Bay Hotel and Casino, 819 F. Supp. 1312, 1317 n.8 (D.N.J. 
1993), aff'd, 34 F.3d 1227 (3d Cir. 1994), persuasively set 
out the opposite case.[fn3]     
	Although it is not clear which way the New Jersey 
Supreme Court would rule on this question--as the 
conflicting district court opinions illustrate--it seems to 
us more likely that the New Jersey Supreme Court would not 
recognize claims such as those that the plaintiff asserted.  
In reaching this conclusion, we find it significant that, 
except in cases involving minors, the New Jersey courts have 
not extended "the liability of servers of alcoholic 
beverages beyond injuries related to drunken driving, 
barroom accidents and barroom brawls."  Hakimoglu, 876 F. 
Supp. at 632.  The intense state regulation of casinos is 
also important because, as the district court observed in 
this case:
[e]xtending common law dram-shop liability into an 
area so fully regulated, without a glimmer of 
legislative intent, is not a predictable extension 
of common law tort principles, and has not been 
foreshadowed by the New Jersey courts.

676 F. Supp. at 633 (footnote omitted).  And as the district 
court noted in Tose: 
[c]onsidering the breadth of areas covered by 
statute and regulation, it would seem that if it 
were indeed the public policy of New Jersey to 
impose liability on casinos for allowing 
intoxicated patrons to gamble, that policy would 
have been enacted.  The State has regulated the 
minutiae of gaming rules and alcohol service and 
expressly permitted the serving of free drinks to 
patrons at the gambling tables.  Surely it could 
not have been unaware that the cognitive 
functioning of many gamblers would be impaired
by drinking or of the consequences of permitting 
persons so impaired to gamble.

819 F. Supp. at 1317 n.8.
	We are also influenced by the difficult problems 
of proof and causation that would result from the 
recognition of claims such as those involved here.  As the 
district court judge in this case aptly put it:
[e]nlargement [the doctrine of dram-shop 
liability] to casino gambling losses could present 
almost metaphysical problems of proximate 
causation, since sober gamblers can play well yet 
lose big, intoxicated gamblers can still win big, 
and under the prevailing rules and house odds, 
"the house will win and the gamblers will lose" 
anyway in the typical transaction.
Hakimoglu, 876 F. Supp. at 636 (quoting Greate Bay, 34 F.3d 
at 

1233 n.8).  Moreover,

[s]uch a cause of action could be fabricated with 
greater ease than a dram-shop action involving 
personal injury, since in the accident case the 
occurrence of the accident is a specific notable 
event and reliable evidence of blood alcohol 
content is usually obtained; in the gambling loss 
case, on the other hand, a dram-shop negligence 
claim might be brought up to two years after the 
gambling events concerning plays of which no 
casino dealer or server could have reason to 
recollect. Although sometimes highstakes table 
games are videotaped using surveillance cameras, 
such tapes from multiple cameras would amount to 
hundreds of hours of films per day that are 
routinely recycled rather than retained if no 
incident is reported within thirty days. The New 
Jersey Supreme Court has expressed concern for the 
reliability of evidence of intoxication and its 
effects, . . . and such reliability is largely 
absent after-the-fact in the casino gaming 
environment.

876 F. Supp. at 637. 
	For these reasons and many of the others mentioned 
in the district court opinions in this case and Tose, we 
predict that the New Jersey Supreme Court would not permit 
recovery on claims such as those asserted by the plaintiff 
here. Accordingly, we affirm the district court's dismissal 
of the plaintiff's claims in both cases, and we remand to 
the district court for further proceedings on the 
defendants' counterclaims.


AYHAN HAKIMOGLU, Appellant in No. 95-5022 v. TRUMP TAJ MAHAL 
ASSOCIATES; TRUMP TAJ MAHAL, INC.; DONALD TRUMP; THE TRUMP 
TAJ MAHAL CORPORATION; TM/GP CORPORATION
AYHAN HAKIMOGLU, Appellant in No. 95-5087 v. BOARDWALK 
REGENCY CORP.


BECKER, Circuit Judge, Dissenting Opinion.
	Ayhan Hakimoglu played his hand, and lost.  Now we 
are being asked to make our own bet.  Sitting in diversity, 
we must predict how the highest court of New Jersey would 
rule.  See Robertson v. Allied Signal, Inc., 914 F.2d 360, 
378 (3d Cir. 1990).  As the majority points out, we must 
make this prediction with little guidance from New Jersey 
law.  But that is an incident -- and a flaw -- of the regime 
of diversity jurisdiction.  I believe that the New Jersey 
Supreme Court would recognize a cause of action, in tort, 
allowing patrons to recover gambling debts from casinos that 
serve them alcohol after they are visibly intoxicated.[fn4]   
This prediction is founded on long standing trends in New 
Jersey law recognizing new causes of action, even in areas 
pervaded by legislation.  
	In my view, the New Jersey Supreme Court is 
especially likely to create a cause of action where a 
defendant profits from conduct causing the foreseeable 
injury, and has the ability, in the exercise of due care, to 
prevent such injury at small cost to itself.  Because this 
case presents these factors, and because I am unpersuaded by 
the majority's arguments, I would reverse the judgment of 
the district court and remand for trial on the merits.  I 
also write to underscore a crucial point mentioned by the 
majority:  as New Jersey has no certification procedure, we 
are forced to make important state policy with little 
guidance. I therefore suggest that New Jersey, to serve its 
own interests and ours, enact a certification provision.  

I. 
	In predicting the course of New Jersey law, we 
must focus on policies and trends in the jurisprudence of 
New Jersey.[fn5]  See McKenna v. Ortho Pharmaceutical Corp., 
622 F.2d 657, 662 (3d Cir. 1980) (in evaluating state law, 
"relevant state precedents must be scrutinized with an eye 
toward the broad policies that informed those adjudications 
and to the doctrinal trends which they evince"), cert. 
denied, 449 U.S. 976 (1980).  The New Jersey Supreme Court 
has long been a leader in expanding tort liability. For 
example, it was one of the first courts to announce the 
doctrine of strict liability, applying it to automobiles.  
See Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 
A.2d 69 (1960).  Moreover, the court's recent cases show its 
continuing willingness to expand tort liability in a variety 
of contexts. See, e.g., Weinberg v. Dinger, 106 N.J. 469, 
524 A.2d 366 (1987) (imposing a duty of care on water 
companies to ensure adequate water pressure for 
firefighters); T&E Industries, Inc. v. Safety Light Corp., 
123 N.J. 371, 587 A.2d 1249 (1991) (recognizing a cause of 
action by the owner of contaminated property against a 
previous owner who allegedly caused the contamination); 
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 
(1993) (imposing a duty of care for the safety of visitors 
to open houses); Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372 
(1994) (expanding bystander liability to include a fiance).  
	Most relevant for our purposes, the New Jersey 
Supreme Court has consistently imposed liability on 
providers of alcohol for foreseeable drinking-related 
injuries -- even though the sale of alcoholic beverages has 
been intensely regulated for many years. See, e.g., 
Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959) 
(recognizing action for death and damages against tavern 
that sold alcohol to minor).  The court has imposed common 
law tort liability upon tavern owners and restaurateurs for 
furnishing alcohol to intoxicated persons who subsequently 
cause injury through drunk driving.  See Sorenen v. Olde 
Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966) 
(extending dram shop liability to patron's own injuries), 
modified in part by Lee v. Kiku Restaurant, 127 N.J. 170, 
603 A.2d 503 (1992).  Importantly, under New Jersey law, the 
person who was served while intoxicated himself can sue the 
tavernkeeper even for damages to his car. See N.J.S.A. 
2A:22A-5(a).  Additionally, the court has extended this 
liability to social hosts, even though they, unlike tavern 
owners, do not profit from the transaction.  It "makes 
little sense to say that [a licensed defendant] is under a 
duty to exercise care, but give immunity to a social host 
who may be guilty of the same wrongful conduct merely 
because he is unlicensed."  Linn v. Rand, 140 N.J. Super. 
212, 356 A.2d 15 (1976); accord Kelly v. Gwinnell, 96 N.J. 
538, 476 A.2d 1219 (1984) (extending dram shop liability to 
social hosts).  	
	The only two New Jersey cases to address the 
present issue, both from a federal district court, have 
predicted that New Jersey would recognize this cause of 
action.  In GNOC Corp. v. Aboud, 715 F. Supp. 644 (D.N.J. 
1989), Judge Cohen opined that "New Jersey has unambiguously 
communicated a strong policy against the noxious potential 
of excessive alcohol consumption in the twin contexts of 
common law dram shop liability and statutory/administrative 
regulation of casino alcoholic beverage service."  Id. at 
653.  In extending dram shop liability to the defendant 
casino, the court explained that its decision was "merely 
furthering the public policy goals underlying the Casino 
Control Act and the regulations promulgated thereunder."  
Id. at 654.[fn6]   
	Then, in Tose v. Greate Bay Hotel And Casino, 
Inc., 819 F. Supp. 1312 (D.N.J. 1993), the district court, 
following Aboud, held that the casino could be liable for 
losses flowing from its allowing an intoxicated patron to 
gamble.  Id. at 1321-23.  Tose subsequently tried his case 
to a jury, which rejected his claim. Greate Bay Hotel And 
Casino, Inc. v. Tose, 34 F.3d 1227, 1228 (3d Cir. 1994).  On 
appeal, which focused mainly on the question whether the 
Casino Control Commission had exclusive primary jurisdiction 
over gamblers' claims against casinos, the judgment for the 
defendant was affirmed.  Id.  Because Tose lost his trial, 
we did not need to decide whether New Jersey would recognize 
this cause of action.  Id. at 1232 n.7.

II.
	Analysis of this case under the principles of New 
Jersey tort law supports the conclusions of Aboud and Tose 
that New Jersey's highest court would recognize Hakimoglu's 
cause of action.  In Hopkins v. Fox & Lazo Realtors, 132 
N.J. 426, 625 A.2d 1110 (1993), the New Jersey Supreme Court 
set out its standard for determining when a tort duty, and 
thus a cause of action in negligence, exists.  The inquiry, 
"ultimately a question of fairness," requires the court to 
weigh (1) the relationship of the parties; (2) the nature of 
the risk; (3) the opportunity and ability to exercise care; 
and (4) the public interest in the proposed solution.  Id.  
These factors support a cause of action in this case.
	First, the relationship of the parties argues 
strongly for casino liability.  Casinos, perhaps the 
ultimate for-profit institution, make their money from 
patrons' losses.  Gambling losses are the casino's business.  
The casino and the gambler, therefore, are linked in an 
immediate business relationship much like that from which 
dram shop liability sprang -- the tavern and the patron.  
See Rappaport, 31 N.J. at 188, 156 A.2d at 1.  Like the 
tavern owner, the casino's control over the environment into 
which the patron places himself, and its ability to open or 
close the alcohol spigot, imposes on the casino some 
concomitant responsibility toward that patron.  Just as the 
tavern owner must make sure that drinking does not cause her 
patron to hurt himself or others, the casino should ensure 
that its alcohol service does lead its patron to hurt 
himself through excessive gambling.  
	Second, the nature of the risk -- essentially a 
test of foreseeability -- also points to casino liability.  
Gamblers come to the casino to gamble; the casino supplies 
free alcohol; the odds favor the casino.  Losses are the 
natural result, if not the intent, of this situation.  
Unacceptable losses due to alcohol consumption are certainly 
foreseeable.  
	This foreseeability factor explains the 
inapplicability of contrary authority.  The New Jersey 
Supreme Court's recent limitations of dram shop liability, 
fairly read, all turn on a lack of foreseeability.  See, 
e.g., Lombardo v. Hoag, 269 N.J. Super. 36, 634 A.2d 550 
(App. Div. 1993), certif. denied, 135 N.J. 469, 640 A.2d 850 
(1994) (rejecting duty of passenger to stop owner of vehicle 
from driving because imposing such an "overbroad duty would 
open a Pandora's box of potential liability and 
responsibility problems"); Jensen v. Schooley's Mountain 
Inn, Inc., 216 N.J. Super. 79, 522 A.2d 1043 (App. Div.) 
certif. denied, 528 A.2d 11 (N.J. 1987) (tavern not liable 
for intoxicated customer's death after he climbed to top of 
tree, fell, and drowned in river); Griesenbeck v. Walker, 
199 N.J. Super. 132, 488 A.2d 1038 (N.J. Super Ct. App. Div. 
1985), certif. denied, 501 A.2d 932 (1985) (no cause of 
action against social host for physical injuries from a fire 
at guest's residence which occurred after the guest returned 
intoxicated).  
	Lack of foreseeability also explains why the New 
Jersey courts and legislature have never extended liability 
for tavern owners and social hosts (as opposed to casinos) 
beyond physical injuries and property damage.  See 
Griesenbeck, 199 N.J. Super. at 144, 488 A.2d  at 1043 (App. 
Div. 1985) (observing that the court has never extended 
liability for servers of alcohol beyond injuries related to 
drunken driving, barroom accidents and barroom brawls); see 
also N.J.S.A. 2A:22A-1 et seq. (1987) (codifying liability 
for physical injury and property damages for "licensed 
alcoholic beverage server[s]").[fn7]   Casinos, on the other 
hand, can plainly foresee large and unacceptable losses from 
patrons they help get drunk.  And the New Jersey Supreme 
Court has made clear that tort is an appropriate basis for 
liability (possibly in addition to a contract theory, see 
supra n.1), even if no physical damage occurs, when the 
losses are foreseeable. See, e.g., People Express Airlines, 
Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107 
(1985) (allowing airline to recover economic damages in tort 
when defendant's tank car accident required it to vacate its 
offices).
	Finally, the presence of foreseeability rebuts the 
casinos complaint that recognizing liability in this case 
would lead to unfair and extreme results.  A restaurant 
located near a casino would be held liable, the casinos 
argue, if it served alcohol to a patron who became 
intoxicated, entered the casino, and lost money.  This, they 
imply, would be unfair.  That may be so.  But because 
foreseeability is lacking in the casinos' hypothetical, the 
analogy to the present case does not withstand scrutiny.  
The restaurant and its customer, in the casinos' 
hypothetical, do not stand in a similar posture to a casino 
and its gambling patron.  The restaurant is not in the 
gambling business and does not necessarily know whether the 
dining patron would later be gambling.  The loss involved, 
therefore, is too remote to fairly and rationally hold the 
restaurant accountable. By contrast, in a casino setting 
with gambling as the primary activity, there is no 
difficulty in foreseeing that the patron will engage in that 
activity and the high chance that he will suffer financial 
losses under a state of intoxication. 
     	The third factor -- the opportunity and ability to 
exercise care -- further suggests liability here.  To a much 
greater degree than tavern owners, casino operators can 
readily protect themselves against the type of liability 
sought to be imposed here.  Unlike most tavern owners, 
restaurateurs or social hosts, casinos generally have huge 
staffs and sophisticated surveillance cameras.  Gamblers, 
particularly high rollers, are constantly monitored by a 
dealer, floor persons, a pit boss, hidden cameras, and 
sometimes even officials of the New Jersey Casino Control 
Commission.  See Tose, 819 F. Supp. at 1320.  When the line 
is crossed, the casino need only refuse to serve more 
alcohol.[fn8]   
	Of course, the patron is also in a position to 
exercise care by not getting drunk.  But this does not 
undermine my argument.  New Jersey has made it clear that if 
the intoxicated person sues for injuries to himself, he may 
be charged with contributory negligence.  See Kiku, 127 N.J. 
at 170, 603 A.2d at 503.  Imposing contributory negligence 
is not a retreat from the policy underlying dram shop 
liability; rather, it is best explained as an effort to 
fairly apportion the loss among all who bear some 
responsibility.  See Fisch v. Bellshot, 135 N.J. 374, 387, 
640 A.2d 801, 807 (1994) ("[P]ublic policy is best served by 
limiting a licensee's dram shop liability through the 
application of comparative negligence rather than by 
eliminating such liability altogether.").  This holding also 
ensures, from the standpoint of deterrence, that both 
parties in a position to avert the harm take steps to 
prevent it.
	Finally, the public interest in the proposed 
solution also leads to the conclusion that New Jersey would 
recognize this cause of action.  Throughout its history, New 
Jersey has exercised strict control over various types of 
gambling.  See Tose, 819 F. Supp. at 1319.  Indeed, only by 
a constitutional provision or amendment can any type of 
gambling be lawfully conducted in this state, subject to 
approved "restrictions and control."  N.J. Const., Art. IV, 
 VII, par. 2.  In an environment where gambling has been 
regarded as "an activity rife with evil," the state's 
general ban on casino gambling should be no surprise.  See 
Petition of Soto, 236 N.J. Super. 303, 314, 565 A.2d 1088, 
1094 (App. Div. 1989), cert. denied, 496 U.S. 937 (1990).  
	Concern for the struggling city's welfare drove 
New Jersey citizens to allow casino operations, with strict 
controls, in Atlantic City.  See Tose, 819 F. Supp. at 1319.  
The 1977 Casino Control Act establishes a comprehensive and 
elaborate regulatory framework for the casino industry, 
reflecting a concern that casinos be restrained in order to 
protect the public.  See N.J.S.A. 5:12-1 to 190; see also 
Knight v. City of Margate, 86 N.J. 374, 380, 431 A.2d 833, 
836-37 (1981).  The Act typically regulates the gambling 
operators rather than penalizing the individual gamblers.  
For instance, casinos, rather than an underage gambler, are 
held liable when the latter enters a casino.  See N.J.S.A. 
5:12-119; see also Department of Law & Public Safety v. 
Boardwalk Regency, 227 N.J. Super. 549, 548 A.2d 206 (App. 
Div. 1988) (holding casino responsible for allowing two 
underage persons to gamble).  
	When it passed the Act, the New Jersey legislature 
recognized that casinos -- with their concentration of 
wealth --have disproportionate power over the political 
process.  See Petition of Soto, 236 N.J. Super. at 313, 565 
A.2d at 1093-94. As expressed in the Act, it is New Jersey's 
pronounced policy to regulate casinos "with the utmost 
strictness to the end that public confidence and trust in 
the honesty and integrity of the State's regulatory 
machinery can be sustained."  Id. (emphasis added).  The 
historical background reveals that New Jersey recognizes an 
important public interest in protecting gamblers. From New 
Jersey's perspective, requiring casinos to protect gamblers 
from losses flowing from their excessive service of alcohol 
would probably also be in the public interest.  
	The most plausible objection to my position is 
that torts of negligence generally seek to deter and 
compensate for the destruction of wealth, while the tort in 
this case is arguably merely allocative.  In other words, a 
typical economic tort would redress negligence that shut 
down a factory, causing a loss in production, while in this 
case the alleged tortfeasor casino coaxes the money from the 
gambler and then retains it. Society is no worse off; 
different parties just possess the wealth.  But allocative 
economic torts, at least for intentional acts of conversion, 
are no stranger to New Jersey law.  See, e.g., Atlantic 
Northern Airlines v. Schwimmer, 12 N.J. 293, 96 A.2d 652 
(1953); Charles Bloom & Co. v. Echo Jewelers, 279 N.J. 
Super. 372, 652 A.2d 1238 (App. Div. 1995); Lombardi v. 
Marzulli, 230 N.J. Super 205, 553 A.2d 67 (Law Div. 1988).  
	For all the foregoing reasons, application of the 
Hopkins criteria, see supra at 6, counsels us to recognize 
this cause of action under New Jersey law, particularly when 
analyzed against the background of New Jersey tort doctrine.

III.	
	The arguments of the majority and the district 
court do not compel a different result.  These arguments, 
drawn largely from Judge Irenas's footnote in Tose,[fn9]  
rest on two main assertions:  (1) that Miller v. Zoby, 250 
N.J. Super. 568, 595 A.2d 1104 (App. Div.), cert. denied, 
606 A.2d 366 (N.J. 1991), undermined Aboud; and (2) that the 
intense legislative regulation of gambling precluded the 
court from finding this cause of action.  In the present 
case, Judge Simandle relied on both assertions, see 
Hakimoglu v. Trump Taj Mahal Associates, 876 F. Supp. 625, 
630-31, 633 (D.N.J. 1994), and the majority places most of 
its stock in the legislative "scope preemption" argument. 
Both of these assertions are incorrect.  
	First, it is untrue that the Appellate Division's 
decision in Zoby undermined Aboud.  In Zoby, the court 
denied an implied cause of action against a casino for 
violating credit regulations.  Id. at 1104.  But this court 
in Tose carefully distinguished Zoby as involving the 
availability of an implied right of action under the Casino 
Control Act -- analytically a very different issue from the 
applicability of common law tort liability.  Greate Bay, 34 
F.3d at 1232 n.7.  Like the case at bar, neither Aboud nor 
Tose was based on an implied cause of action under the 
Casino Control Act or its regulations.  Rather, all involve 
common law causes of action, which I believe the New Jersey 
Supreme Court would recognize.
	Second, the argument that legislation regulation 
of casinos precludes this common law cause of action both 
misapprehends New Jersey jurisprudence and overstates its 
own force.  This scope preemption argument, which forms the 
bulk of the majority opinion, mistakes New Jersey 
jurisprudence by viewing this issue through the lens of 
federal court interpretive assumptions, including great 
deference to legislative bodies.  If this case presented an 
issue of federal law, a federal court might view the 
extensive legislative regulation of casinos as precluding it 
from properly recognizing this cause of action. But many 
factors might fundamentally affect how a state supreme court 
would interpret and make the law.  To reiterate, this case 
requires us to predict what the New Jersey Supreme Court 
would do if presented with this situation.  See Robertson, 
914 at 378. 
	In my view, as explained above, New Jersey's 
jurisprudence differs from that of the federal courts:  New 
Jersey is likely to recognize a cause of action when the 
Hopkins factors are present, even where, because of 
extensive legislative regulation, federal courts would not.  
New Jersey's high court has made clear that tort liability, 
historically a judicial matter, falls squarely in its 
bailiwick.  "[W]e do not agree that the issue addressed in 
this case is appropriate only for a legislative resolution.  
Determination of the scope of duty in negligence cases has 
traditionally been a function of the judiciary."  Gwinnell, 
96 N.J. at 552, 476 A.2d at 1226; accord Hopkins, 132 N.J. 
at 439, 625 A.2d at 1116 ("[D]etermining the scope of tort 
liability has traditionally been the responsibility of the 
courts.").  In Dunphy, the court's most recent expansion of 
tort liability, the court stated:
We have recognized, in numerous settings, that 
traditional principles of tort liability can be 
adapted to address areas in which recognition of a 
cause of action and the imposition of a duty of 
care are both novel and controversial.  
	
136 N.J. at 109, 642 A.2d at 376-77 (citations omitted).  
	As I have explained, the New Jersey Supreme Court 
has long been hospitable to the recognition of liability for 
drinking-related injuries.  See, e.g., Sorenen, 46 N.J. at 
582, 218 A.2d at 630 (extending dram shop liability to 
patron's own injuries); Gwinnell, 96 N.J. at 538, 476 A.2d 
at 1219 (extending dram shop liability to social hosts).  
This willingness to define the scope of liability exists 
even where the conduct at issue is the subject of 
legislative or administrative regulation.  See, e.g., Kiku, 
127 N.J. at 170, 603 A.2d at 503 (creating contributory 
negligence defense in dram shop action against restaurant 
despite intense legislative regulation of alcohol, 
restaurants, and codification of dram shop liability).  
	Indeed, even the authority cited by the casinos as 
"indicative of the firm efforts of the New Jersey courts to 
limit the liability of a server of alcohol for a plaintiff's 
injuries" acknowledges that the state supreme court is free 
to recognize new causes of action.  In Lombardo, 269 N.J. 
Super. at 36, the court reversed the trial court's decision 
to extend dram shop liability.  In doing so, it noted "that 
it is generally not considered the function of a trial court 
to create an exception to an established rule of law.  Such 
a function is generally reserved for the Supreme Court or 
the legislature."  Id. at 48 (citations omitted).  To 
emphasize again, our task here is to determine what the New 
Jersey Supreme Court -- not a trial court -- would do in 
this situation.  See Pennsylvania Glass Sand Corp. v. 
Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981). 
	Moreover, even given federal jurisprudential 
assumptions, the scope preemption argument is overstated.  
As I will explain, the logical extension of this argument 
would lead to an absurd result:  namely, absolving casinos 
for liability when patrons they have continued to serve kill 
others in drunk driving accidents.  As the majority points 
out, the Casino Control Act closely regulates casino 
operation.  In particular, the casinos, like the taverns, 
are not permitted to serve visibly and obviously intoxicated 
persons.  See N.J.S.A. 5:12-103(d) & (f)(2); N.J.A.C. 13:2-
23.1(b).  The other act on which the majority leans for 
scope preemption, the Licensed Alcoholic Beverage Server 
Act, N.J.S.A. 2A:22A-1 et seq., imposes liability for 
physical and property injury when licensed alcoholic 
beverage servers (not including casinos) serve already 
intoxicated persons.  Under the majority's approach, because 
of this lacuna, casinos would not be liable for deaths 
caused by a gambler that it nevertheless continues to serve 
after the gambler is obviously intoxicated.  In passing 
these two acts, the legislature must have thought of this 
possibility, and yet made no provision for it.  It cannot be 
the case, however, that a host is liable for injuries that 
his guest sustained after drinking at a dinner party while 
casinos are absolved from liability for drunk driving 
accidents, even to third parties, under New Jersey law.  The 
scope preemption argument is thus flawed for this reason as 
well.
	
IV. 	
	While our job is not to make policy for New Jersey 
(and we should be careful not to do so accidently by 
interpreting New Jersey law under assumptions of legislative 
deference it does not share), policy rationales would, in 
fact, guide the state's high court in appraising this 
putative cause of action.  The district court enumerated 
seven problems to recognizing this cause of action.  I will 
set out and rebut these objections below.
	The first objection is essentially that the 
aggrieved gambler, as such, had no inhibitions that alcohol 
could overcome. Hakimoglu, 876 F. Supp. at 636.  The second 
objection is that the gambler, seeking risk, got just what 
he came for.  Id.  These two objections seem to state the 
same point; hence I deal with them together.  The point is 
that, inhibitions or not, the gambler got much more than he 
came for.  Tavern patrons, of course, come to drink, but 
injury results if they become so drunk that they hurt 
themselves or someone else, and dram shop liability 
attaches.  It is surely true, as Judge Simandle observed, 
that sober gamblers can lose big and intoxicated gamblers 
can win big.  However, ex ante, gambling is a form of 
consumption because the odds favor the casino.  In other 
words, because the casino wins in the long run, 
statistically the patron is paying to gamble.  The patron is 
consuming a nondurable good like someone dining out, taking 
a vacation -- or drinking liquor.  Alcohol, by impairing 
judgment and lowering inhibitions, can lead the patron to 
consume more than he would if he were sober.  As with 
drinking itself, excessive consumption in the form of 
alcohol-induced gambling can cause quite severe injury -- 
just ask the spouse of a gambler whose house is foreclosed 
and kids withdrawn from their schools because the gambler 
lost the family's savings.  And the damage can be wrought in 
an instant.  This is more than even the most uninhibited 
person bargains for.
	The third, also related objection is that alcohol 
cannot interfere with responsible gambling because gambling 
requires no particular skill.  Id.  To begin with, the 
latter part of this assertion is wrong.  Although slot 
machines require no particular ability, many others games do 
require skill in counting cards and making strategic 
choices.  See Tose, 819 F. Supp. at 1319 n.9 (discussing how 
card counting improves a bettor's odds).  As a whole, this 
assertion is also beside the point.  Even if a gambler plays 
a game requiring no skill, alcohol can have a critical 
effect on his judgment about when to stop playing. 
	The fourth objection is that problems of proof --
principally regarding proximate causation -- would confound 
fact-finders in evaluating such claims.  Hakimoglu, 876 F. 
Supp. at 636.  Once again, the relevant concern here is not, 
as the casinos suggest, whether the intoxicated gambler 
reduces his odds of winning because of his inability to play 
"prudently."  Rather, the issue is whether the intoxication 
impairs the gambler's ability to determine when to stop 
gambling when his losses grow beyond a level which he can 
afford.  And proof of the nexus between the intoxicated 
status of a high roller such as Hakimoglu and his losses 
seems less difficult than determining the causation of 
cancer in many medical malpractice and toxic tort cases.  
Regardless, it does not furnish a basis on which to conclude 
that New Jersey would shy away from recognizing a cause of 
action.  See People Express Airlines v. Consolidated Rail, 
100 N.J. 246, 254, 495 A.2d 107, 111 (1985) (explaining that 
an "asserted inability to fix crystalline formulae for 
recovery on the differing facts of future cases simply does 
not justify the wholesale rejection of recovery in all 
cases").   
	I acknowledge that it is not always easy to 
determine when a gambler is intoxicated.  But this matter is 
before us on a motion under Fed. R. Civ. Pro. 12(b)(6), and 
we must take the well pleaded facts as true.  And when we 
do, the alleged (mis)conduct of the defendant casinos, i.e., 
that they continued to serve a visibly intoxicated gambler 
who was losing millions of dollars, should be sufficient to 
state a claim for relief under the federal rules.  I do not 
mean to pin a medal on the gambler, especially one such as 
Hakimoglu, who knows full well what he is doing when he goes 
repeatedly to the casino and loses big.  The jury may have 
no sympathy for him and find him contributorily negligent, 
or find the casino not liable at all, as it did in the Tose 
case.  But that is a question for the jury:  whether as the 
result of the casino's (mis)conduct, the gambler has lost 
his ability to make a reasonable judgment as to whether to 
continue. In my view, such an individual, at such a time, 
appears to be within the class that the New Jersey 
jurisprudence protects.
	The district court's fifth objection is that 
recognizing this tort could open the floodgates to 
fraudulent claims.  Hakimoglu, 876 F. Supp. at 637.  A 
typical dram shop claim, defendants argue, will follow an 
accident at which the police will be called, the blood 
alcohol content of the driver examined and witnesses 
interviewed.  But that is not always the case.  Many a dram 
shop claim -- and they are recognized by New Jersey without 
any prerequisite of prompt investigation -- are filed "out 
of the blue" from the vantage point of the defendant. 
Moreover, lawsuits such as Hakimoglu's are both extremely 
costly to pursue and quite risky, and lawyers will not 
undertake them except in the rare case where losses are 
substantial.  The "floodgates" argument, therefore, is 
unconvincing.  And since the high rollers who are both 
losing and drinking big are surely identified at the time of 
their losses, the surveillance cameras can be concentrated 
on them and the tapes can be specially marked and preserved.  
In other words, the casinos can protect themselves.
	The sixth objection is that sufficient deterrence 
already exists because casinos cannot enforce credit markers 
entered into by drunk patrons.  Id.  A remedy in the marker 
situation, however, does nothing to deter losses in the many 
cases when, as here, the loss in question was not on credit. 
This objection could be restyled as one against 
overdeterrence (and its corresponding inefficiency), which 
is always a potential problem for torts.  If the casino had 
little to gain and much to lose from its behavior -- as it 
might if, say, New Jersey law allowed large recoveries for 
minor physical injuries sustained in a casino -- it might 
take overly zealous steps to prevent this occurrence.  
Overdeterrence is not likely to be problematic here, 
however, because the casinos would be liable only up to the 
amount that they had gained by their tortious conduct.  They 
have much to gain and little to lose from continuing to 
serve intoxicated gamblers, even if this tort were 
recognized.  If anything, underdeterrence probably would 
remain the biggest problem:  only in some percentage of 
cases will the gambling losers claim and win their money 
back.[fn10]    
	Finally, the district court argues that the court 
should not recognize this cause of action because New 
Jersey's casino regulators have never required "a casino to 
refund such gaming losses allegedly incurred by an 
intoxicated patron at any time in sixteen years of casino 
gambling in New Jersey."  Id.  In addition to undermining 
its sufficient deterrence argument,[fn11]  this objection 
also misses the point.  The legal authority and policy 
choices of the casino commission have no bearing on how the 
New Jersey Supreme Court, as a matter of common law, might 
choose to regulate this situation.    
	   For all of the foregoing reasons, I am 
satisfied that the New Jersey Supreme Court would recognize 
Hakimoglu's cause of action.
V.
	This case is its own best evidence, as the 
majority observes, of the utility of a certification 
procedure; I respectfully urge New Jersey to adopt 
one.[fn12]   The lack of a certification procedure 
disadvantages both New Jersey and the federal judiciary.  
Especially in cases such as this where little authority 
governs the result, the litigants are left to watch the 
federal court spin the wheel.  Meanwhile, federal judges, by 
no means a high-rolling bunch, are put in the uncomfortable 
position of making a choice.[fn13]   In effect, we are 
forced to make important state policy, in contravention of 
basic federalism principles. See Dolores K. Sloviter, A 
Federal Judge Views Diversity Jurisdiction Through the Lens 
of Federalism, 78 VA. L. REV. 1671 (1992).  The possibility 
that federal courts may make interpretive assumptions that 
differ from those of the state court further complicates 
this process.  States like New Jersey lacking certification 
procedures face the threat that federal courts will 
misanalyze the state's law, already open to varied 
interpretations, by inadvertently viewing it through the 
lens of their own federal jurisprudential assumptions.
	The mischief created by the lack of a 
certification procedure was demonstrated by Judge Sloviter 
when she catalogued some of the Third Circuit's missteps in 
interpreting the law of Pennsylvania, which also lacks a 
certification procedure:
[W]e have guessed wrong on questions of 
the breadth of arbitration clauses in 
automobile insurance policies (we 
predicted they would not extend to 
disputes over the entitlement to 
coverage [Myers v. State Farm Ins. Co., 
842 F.2d 705 (3d Cir. 1988)], but they 
do [Brennan v. General Accident Fire & 
Life Assurance Corp., 574 A.2d 580 (Pa. 
1990)], the availability of loss of 
consortium damages for unmarried 
cohabitants (we predicted that they 
would be available [Bulloch v. United 
States, 487 F. Supp. 1078 (D.N.J. 
1980)], but they are not [Leonardis v. 
Morton Chem. Co., 184 N.J. Super 10, 445 
A.2d 45 (App. Div. 1982)], and the 
"unreasonably dangerous" standard in 
products liability cases (we predicted 
the Restatement would not apply [Beron 
v. Kramer-Trenton Co., 402 F. Supp. 1268 
(E.D. Pa. 1975), aff'd, 538 F.2d 319 (3d 
Cir. 1976)], but it does [Azzarello v. 
Black Bros. Co., Inc., 480 Pa. 547, 391 
A.2d 1020 (1978)].

Sloviter, 78 Va. L. Rev. at 1679-80.[fn14] 	
	New Jersey, in failing to adopt a certification 
procedure, is in a small minority.  At present, forty-three 
state supreme courts, the court of last resort in Puerto 
Rico, and the Court of Appeals of the District of Columbia 
can answer certified questions of law from federal circuit 
courts.  See American Judicature Society ("AJS"), 
Certification of Questions of Law: Federalism in Practice 
15-17 (1995).[fn15]   Granting certification power is also 
supported by the federal judiciary's Long Range Plan for the 
Federal Courts.  Recommendation 8 of that Plan states:  "The 
states should be encouraged to adopt certification 
procedures, where they do not currently exist, under which 
federal court (both trial and appellate) could submit novel 
or difficult state law questions to state supreme courts." 
Committee on Long Range Planning, Judicial Conference of the 
United States, Proposed Long Range Plan for the Federal 
Courts 32 (March 1995).[fn16]   Certification is not a 
panacea, and can inflict delay on litigants.  See Geri 
Yonover, A Kinder, Gentler Erie: Reining in the Use of 
Certification, 47 Ark. L. Rev. 305 (1994). But this is an 
argument for exercising the authority wisely --not for 
denying it altogether.
	Fifty-four percent of United States Circuit judges 
responding to the AJS survey indicated they were "willing" 
or "very willing" to certify questions, AJS Report, supra, 
at 43, and eighty percent of state supreme court justice 
said they were "willing" or "very willing" to answer these 
questions.  AJS Report, supra, at 46.  Ninety-five percent 
of the United States Circuit Judges and ninety percent of 
the United States District Judges were either "very 
satisfied" or "somewhat satisfied" with the certification 
process in their most recent certified case. Id. at 42.  In 
terms of overall satisfaction, eighty-seven percent of the 
state court justices said they were either "very satisfied" 
or "somewhat satisfied" with their most recent certification 
experience.  Id. at 43.
	While this is not a forum for drafting a 
certification statute, I believe that a federal court should 
be authorized to certify a question of law to the state 
court when:  (1) the issue is one of importance; (2) it may 
be determinative of the litigation; and (3) state law does 
not provide controlling precedent through which the federal 
court could resolve the issue.  This is a textbook case for 
certification.  The issue is determinative of the 
litigation; important public policy issues are at stake; and 
little authority guides our decision. Moreover, neither the 
casinos nor Hakimoglu, with all their resources, require 
immediate resolution of the matter.  Yet, alas, New Jersey 
lacks a certification procedure, and still we must 
"predict."[fn17]  

VI. CONCLUSION
	The majority fairly observes that this case is a 
difficult one and that reasonable arguments support either 
side. Nevertheless, I believe that the better arguments 
should lead us to predict that New Jersey would find a cause 
of action here, subject to the defense of contributory 
fault.  The New Jersey Supreme Court has been highly 
hospitable to recognizing causes of action, even in areas 
where the legislature has acted, for foreseeable injuries.  
The four factors the court uses for evaluating whether a 
duty exists -- (1) the relationship of the parties; (2) the 
nature of the risk; (3) the opportunity and ability to 
exercise care; and (4) the public interest -- all point 
toward finding a cause of action here.  And the policy 
objections of the majority and the litigants either miss the 
point or are overstated.  For all of the foregoing reasons, 
I believe the New Jersey Supreme Court would recognize a 
cause of action, in tort, allowing patrons to recover 
gambling debts from casinos that serve them alcohol after 
they are visibly intoxicated.  I therefore respectfully 
dissent.


Footnotes

[fn1] See e.g., Del. Const., art. IV, sec. 9; Del. Sup. Ct. R. 
41(a)(ii).
[fn2] Judges Nygaard and Alito join section V of Judge Becker's Dissent, 
and enthusiastically endorse his recommendations therein.
[fn3] On appeal in this case, we did not decide the question that is now 
before us.  See Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227, 1232 
n.7 (3rd Cir. 1994).  In that case, the casino sued Tose for gambling 
debts, and Tose responded with a counterclaim similar to the claims of 
the plaintiff here.  The district court judge to whom the case was 
initially assigned ruled, in accordance with Aboud, that the plaintiff's 
allegations stated a claim on which relief could be granted under New 
Jersey law.  The case was later reassigned to a different district court 
judge, and that judge allowed the counterclaim to go to trial based on 
the law-of-the-case doctrine, but in his published opinion he expressed 
his reservations concerning Aboud.  See 819 F. Supp. at 1317 n.8.  The 
counterclaim was tried to a jury, and Tose lost. Tose appealed the 
district court's denial of his motion for a new trial, and the casino 
argued, among other things, that the district court should not have 
exercised jurisdiction over the counterclaim because it lay within the 
exclusive primary jurisdiction of the state Casino Control Commission.  
We rejected this argument, as well as Tose's contentions regarding the 
denial of the new trial motion.  We expressly declined to predict 
whether the state supreme court would hold that Tose's counterclaim 
stated a claim on which relief could be granted. See 34 F. 3d at 1232 
n.7.  We did observe:  "[W]hile we do not make a ruling on the point, a 
reasonable argument can be made that a casino owes a common law duty to 
a patron to prevent him from gambling when it knows he is intoxicated."  
Id. This comment did not decide the question presented in this case; nor 
do we interpret it as inconsistent with our holding in this appeal.  We 
completely agree that "a reasonable argument can be made" in support of 
a result contrary to the one we reach.  However, forced to predict 
whether the New Jersey Supreme Court would accept that argument, we 
predict that it would not.
[fn4] In addition to the tort theory Hakimoglu has pursued, a gambler in 
his position may have a claim in contract.  The gambler's obvious 
intoxication, one might argue, voided the gambling contract.  See, e.g., 
Feighner v. Sauter, 259 N.J. Super. 583, 590, 614 A.2d 1071, 1075 (App. 
Div. 1992) (listing grounds for contract rescission, including 
intoxication); Onderdonk v. Presbyterian Homes of New Jersey, 85 N.J. 
171, 183, 425 A.2d 1057, 1062 (1981) (every contract has "implied 
covenant of good faith and fair dealing").  The district court seemed to 
doubt the existence of this "so-called gambling 'contract'" because 
"there is no mutuality."  Dist. Ct. Op. at 17 n.7.  "The patron does not 
negotiate the terms of his relationship with the casino," the court 
explained, "nor can the patron or the casino vary the rules of the game, 
the odds, or the payoffs."  Id.; see also Tose v. Greate Bay Hotel and 
Casino, Inc., 819 F. Supp. 1312, 1317 n.8 (D.N.J. 1993) ("[B]ecause 
every aspect of the relationship between the gambler and the casino is 
minutely regulated by the state[,] there is little of freedom contract 
in the usual sense.").  But the patron retains the choice whether to 
play, and how much to bet.  Thus, this situation is little different 
from most sales contracts.  Purchasing a hair dryer, for example, forms 
a contract even though the price is set and the characteristics of the 
good are heavily regulated.  On what other basis is the casino legally 
able to keep the gambler's money after he loses?  Moreover, the 
pervasive regulation of the gambling relationship does not nullify its 
contractual nature. New Jersey courts have held that gambling on credit 
markers forms a contract between the casino and the patron, see Lomonaco 
v. Sands Hotel, 259 N.J. Super. 523, 614 A.2d 634 (Law Div. 1992), and 
that the Casino Control Act did not abrogate traditional common law 
contract defenses such as intoxication.  See id.	 However, 
Hakimoglu has declined to press a contract claim and hence we do not 
decide the question.
[fn5] Precedent from Nevada, the only other state in which casino 
gambling is legal, provides no help, for Nevada does not recognize dram 
shop liability at all.  See Hamm v. Carson City Nugget, Inc., 450 P.2d 
358 (Nev. 1969).  The federal government has virtually complete 
authority over Native American Indian reservations, see James J. 
Belliveau, Casino Gambling Under The Indian Gaming Regulatory Act: 
Narragansett Tribal Sovereignty Versus Rhode Island Gambling Law, 27 
Suffolk U. L. Rev. 389 (1994), but there is no federal law in this area.
[fn6] The holding of Aboud is actually broader than necessary for 
Hakimoglu:  "In sum, a casino has a duty to refrain from knowingly 
permitting an invitee to gamble where that patron is obviously and 
visibly intoxicated and/or under the influence of a narcotic substance."  
Id. at 655.  This raises the interesting question about the scope of 
putative liability: is it liability for continuing to serve the 
intoxicated gambler (essentially a dram-shop theory), or liability for 
failure to stop him from gambling (essentially an invitee theory).  
While in practical terms there may be little difference between the two, 
doctrinally I think that the proper issue is liability for continuing to 
serve.  At all events, Hakimoglu does not present a claim for failing to 
stop him from gambling.
[fn7] Because casinos are not "licensed alcoholic beverage server[s]" 
under the act, this law does nothing to limit casino liability directly.
[fn8] Again, on the theory that Hakimoglu pursues (based on dram shop 
liability), the casino presumably would need only to stop serving the 
patron alcohol after he became obviously and visibly intoxicated.  It 
would not need to bar him from further gambling, though hopefully the 
refusal to serve might serve as a "wake-up call."  On the broader theory 
articulated in Aboud, however, the casino might have to keep a patron 
from gambling, even if he had become drunk elsewhere. 
[fn9] The complicated procedural posture of the Tose case served as a 
sounding board for both sides of this debate.  Judge Rodriguez, to whom 
the case was originally assigned, elected to follow Aboud.  The case was 
then reassigned to Judge Irenas, who acknowledged that he was bound by 
Aboud as the law of the case, but noted his disagreement with that case 
in a footnote.  Tose, 819 F. Supp. at 1316 n.8.    
[fn10] For more analysis of the economics of a gambling tort, and the 
connection between gambling and alcohol, see Jeffrey C. Hallam, Note, 
Rolling the Dice:  Should Intoxicated Gamblers Recover Their Losses, Nw. 
U. L. Rev. 240 (1990). 
[fn11] How can there be sufficient deterrence in the nonmarker situation 
when enforcement has been totally lacking?
[fn12] Judges Nygaard and Alito have expressed their agreement with the 
recommendations contained in this part of my opinion.
[fn13] I am, needless to say, not the first to make this observation.  
See, e.g., McKenna, 622 F.2d at 661 ("Although some have characterized 
this assignment as speculative or crystal-ball gazing, nonetheless it a 
task we may not decline.") 
[fn14] For additional examples of our difficulty predicting state law, 
and a call for the State of Pennsylvania to adopt a certification 
procedure, see Stella L. Smetanka, To Predict or To Certify Unresolved 
Questions of State Law:  A Proposal for Federal Court Certification to 
the Pennsylvania Supreme Court, Temp. L. Rev. 725 (1995).  In 
particular, Smetanka describes the Third Circuit's troubles in assessing 
the scope of Pennsylvania's public-policy exception to at-will 
employment in the wake of Geary v. United States Steel Corp., 319 A.2d 
174 (Pa. 1974).  For recent examples of this difficulty, see Borse v. 
Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992), and Smith v. Calgon 
Carbon Corp., 917 F.2d 1338 (3d Cir. 1990).   
[fn15] [hereinafter "AJS Report"].  The states vary widely on whether 
the source of this authority is a constitutional provision, statute, 
court rule -- or a combination of the three. Id.  The states also differ 
considerably on their standard for accepting certified questions.  
Eleven states require that the certified question be determinative of 
the litigation; twenty-six states, Puerto Rico, and the District of 
Columbia require only that the question may be determinative; and six 
others require that there be -- or appear to be -- no controlling 
precedent or authority.  AJS Report, supra, at 18-20.
[fn16] Recommendation 8 was adopted by the Judicial Conference as part 
of the approved long range plan on September 19, 1995.
[fn17] In order to bring this proposal to the attention of the 
appropriate New Jersey authorities, I request that the Clerk mail copies 
of this opinion, referencing Part V of the dissent, to the Chief Justice 
of the New Jersey Supreme Court, the Director of the Administrative 
Office of New Jersey Courts, the Chair of the Judiciary Committees of 
the New Jersey House and Senate, and the Attorney General of New Jersey.



1