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points by JumpCrisscross 4 days ago | 0 comments
> Federal preemption is well established

In what? Source?

CFTC seems to be preëmpting state gambling laws under commodities regulation (specifically, as "excluded commodities"). That sounds, to me, like a major question. The sort Chevron deferred to regulators. The kind our current SCOTUS says should be decided by the Congress. To my knowledge, the Congress has said nothing about prediction markets. Which means it's in the domain of states.

Otherwise, fuck it, let's launch a prediction-market based national health insurance market. I'll sell you a contract that pays my medical bills if I have a health event.

[–] joshheitzman 4 days ago
Its right there on Kalshi's website: https://help.kalshi.com/en/articles/13823765-how-is-kalshi-r...

Congress didn't identify the markets it was regulating by common names or trade names. It doesn't matter if its generally called a prediction market, a commodities market, or a futures exchange. What matters is if it qualifies as a Designated Contract Market as per https://www.ecfr.gov/current/title-17/chapter-I/part-38 so if you want to actually have knowledge of what Congress said on this topic your going to have read all of that.

There is already a split decision on this between the 3rd and 9th circuits so it seems likely SCOTUS is going to take this up. I expect they'll be the ones deciding if this in the domain of the states or not. If they don't pick it up then its going to vary by circuit, such that it will be in the domain of some states and not others.

[–] JumpCrisscross 4 days ago
> What matters is if it qualifies as a Designated Contract Market

DCMs are a creature of rule, not statute [1]. The statutes that animate it are the CFMA of 2000, Dodd-Frank "special rule" for event contracts and CEA § 5. The core question, whether the CFTC has the authority to regulate this kind of DCM, is still open.

> There is already a split decision on this between the 3rd and 9th circuits so it seems likely SCOTUS is going to take this up

Links to the split opinions?

[1] To be clear, DCMs are undefined in statute. DCMs are just referenced in other statute. Part 38 is an implementing regulation.

[–] joshheitzman 4 days ago
> Links to the split opinions?

Seriously? That is easy to find, so I'm just going to skip past that to the petition to SCOTUS that references both: https://www.supremecourt.gov/DocketPDF/26/26-299/428759/2026...

[–] JumpCrisscross 4 days ago
I mean, I love that write-up, but it's because I wholly agree with it.

If that's your only source, I'll rest my case–it make the argument cleanly.

[–] joshheitzman 4 days ago
Honestly, I have no idea what case you are resting if you think a petition to SCOTUS to hear arguments to settle all of this means its already settled.

Its seems like there is literally nothing you will accept to show that this isn't settled yet.

[–] JumpCrisscross 4 days ago
I don’t think this is settled law—I never said that. I think the argument for this not being under CFTC and thus federal jurisdiction is clear. I’m curious for someone to show the other argument. If someone just shows me my own argument back, as you did, I’m going to assume that sort of settles your view on it.

To the extent I’m challenging anything above, you’ll see it’s in rejecting anyone claiming this is obvious or settled.

[–] joshheitzman 4 days ago
"if someone just shows me my own argument back, as you did" - makes crystal you didn't read substantive parts of the document as both arguments are literally in that document.
[–] gamblor956 4 days ago
That's farcical on its face.

Predictions aren't swaps as defined by federal law. If they were, the term "swap" would be so broad that every transaction and exchange of value in the world would be within the CFTC's jurisdiction, excluding those the CEA gives to the SEC.

The only reason the prediction market hasn't already been shut down is because multiple members of the president's family are heavily invested in the industry.

[–] sidewndr46 4 days ago
Is there any legal basis for prediction markets being a freedom of speech issue
[–] lo_zamoyski 4 days ago
In a morally relativistic, legally positivistic hyper-individualism that ignores the objective truth and prioritizes individual “autonomy” over substantive moral ends, you can pervert any positive law to mean whatever you wish - this is how pornography came to be regarded as protected free speech. (The classical legal tradition views law as an ordinance of reason directed toward the common good.)

So I wouldn’t be surprised under the right social and cultural conditions and the right people in power that it could become regarded as a protected liberty. It is rather frightening that this relativism – deprived of objective anchors and standards – doesn’t strike people as terrifying. Too many people take for granted the status quo they are accustomed to, or they are so fixated on satisfying some appetite du jour that they fail to grasp the waiting Dionysian fallout[0].

[0] https://chs.harvard.edu/primary-source/euripides-bacchae-sb/

[–] sidewndr46 4 days ago
I'm not really sure where you are getting this ivory tower view from. Pornography is not protected speech in the united states. The actual legal test as applied by our justice system for this "I know it when I see it" as applied under the Roth test. The practical effect of this is that our legal system is free to censor whatever it wants when it deems it necessary to. You seem deeply disappointed that our society as a result, chose obscenity quite often rather than censorship.

My general position has been that the durability of the Bill of Rights is directly attributed to what you call "relativism". When the government finds the Bill of Rights to be unpleasant, they simply decide it never applied in the first place.

[–] JumpCrisscross 4 days ago
> Is there any legal basis for prediction markets being a freedom of speech issue

Wall Street has been trying to argue this for ages [1]. To date, it hasn't worked.

[1] https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/06/2...

[–] cowlevel 4 days ago
Didn't a court find that money is speech once?