Case: 25-1922 Document: 83 Page: 25 Date Filed: 09/24/2025
Page 24
1 that they would have to show to overcome the clear statutory
2 text.
3
And the one final point on that that I would just make
4 is if the Court harbors any doubt about this, I mean, there are
5 a number of other sort of things that you can look to to dispel
6 that doubt, and one is the special rule itself. The special
7 rule, which is how Congress wanted the CFTC to address certain
8 kinds of event contracts that Congress recognized, you know,
9 deserve closer scrutiny is to have the CFTC subject those
10 contracts to review and to give the CFTC the authority to make
11 a public interest call with respect to those contracts, and
12 right there in the text of the special rule is gaming. So
13 if -- even if, you know, they certainly can't point to anything
14 in the statute that would allow them to sort of atextually
15 exclude gaming contracts, and the opposite is true.
16
JUDGE PORTER: Yeah, I'm good.
17
JUDGE CHAGARES: Back to field preemption, and -- and
18 let me talk about that just for a minute. It seems that you
19 agree with your friends on the other side, that the -- that the
20 CEA does not preempt some state common law fraud claims. I'm
21 just wondering, can -- can -- how then can field preemption
22 occur? I maybe I have it wrong. Doesn't Congress have to have
23 left no room at all for state regulation?
24
MR. HAVEMANN: So that the key, Your Honor, is in how
25 to define the preempted field. So because the field that is
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