Case: 25-7187, 02/17/2026, DktEntry: 37.2, Page 12 of 41
Appellees’ views and the district court’s decision, if accepted, present a fundamental threat to Congress’s statutory design. As Justice Holmes presciently noted in 1905: People will endeavor to forecast the future, and to make agreements according to their prophecy. Speculation of this kind by competent men is the self-adjustment of society to the probable. Its value is well known as a means of avoiding or mitigating catastrophes, equalizing prices, and providing for periods of want. It is true that the success of the strong induces imitation by the weak, and that incompetent persons bring themselves to ruin by undertaking to speculate in their turn. But legislatures and courts generally have recognized that the natural evolutions of a complex society are to be touched only with a very cautious hand, and that such coarse attempts at a remedy for the waste incident to every social function as a simple prohibition and laws to stop its being are harmful and vain. Bd. of Trade of Chi. v. Christie Grain & Stock Co. , 198 U.S. 236, 247-48 (1905). States cannot invade the CFTC’s exclusive jurisdiction over CFTC-regulated designated contract markets (“DCMs”) by re-characterizing swaps trading on DCMs as illegal gambling. The decision below is inconsistent with the text, structure, and history of the CEA and, if affirmed, would reintroduce precisely the regulatory fragmentation Congress deliberately displaced. It is Appellees’ theory of the case that presents a seismic shift in the longstanding status quo between CFTC and state authority. This court need only look at many of these same parties’ temporary restraining order against Coinbase, where they requested, and received, an injunction barring the offering of “event- based contracts relating to sporting and other events .” Ex Parte Temporary
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