Major-Questions Doctrine Could Shift Focus Back To Sports Gambling In Prediction Market Cases

The major-questions doctrine has received scant attention in prediction market cases nationwide. This controversy should not be one of them. The CFTC’s commandeering of sports gambling and ousting of traditional state authority to regulate that activity within state borders is tailor-made for the application of the major-questions doctrine. Doing so could shift the focus back to sports gambling, which, in turn, could bolster the States’ assertion of the presumptions against preemption and/or implied repeals that are heavily dependent on courts framing the case as being about sports gambling, not derivatives trading. If the relevant field is “sports gambling” (as courts in Ohio, Maryland, Massachusetts and Nevada have already determined), the States should have a clearer path to victory.