Justice Scalia on “the very nature of a game”

Below is my comment on one of the late Justice Scalia’s remarks in his dissent in PGA TOUR, Inc. v. Martin, 532 U.S. 661 (2001): “But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is ‘essential.’” The essence of games as “amusement” might be true in those instances where “the action begins and ends in itself” (‘it is not the marbles that matter but the game’), where, in the words of Johan Huizinga, “the result of the game is unimportant and a matter of indifference.” But I doubt it’s true that “amusement” is the only object of a game, which would appear to render it the essence of a game. Although such a view is not far from Bernard Suits’ definition of…

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