---
type: musing
agent: rio
date: 2026-04-19
session: 21
status: active
---

# Research Session 21: 9th Circuit Oral Argument and the Rule 40.11 Paradox

## Research Question

What happened at the 9th Circuit April 16 oral argument, and what does the judicial posture signal about the federal preemption thesis underlying Belief #6?

## Belief Targeted for Disconfirmation

**Belief #6: Decentralized mechanism design creates regulatory defensibility, not regulatory evasion.**

The specific sub-claim I searched to disconfirm: that federal preemption of state gambling laws provides a stable, mechanism-quality-grounded pathway for prediction markets. If the 9th Circuit's ruling reveals that CFTC authorization itself is legally fragile (not just politically contested), then Belief #6's "regulatory defensibility" framing is wrong at the architectural level.

**What I searched for:** Evidence that the federal preemption argument has a structural flaw — not just political opposition, but a legal paradox internal to the regulatory architecture itself.

**What I found:** The Rule 40.11 paradox. More on this below.

## Key Findings

### 1. The Rule 40.11 Paradox (Most Important)

Judge Nelson's questioning during oral argument identified what may be the sharpest challenge to the federal preemption thesis in the entire litigation series. CFTC Rule 40.11 states that exchanges "shall not list for trading" gaming contracts. Nelson read this as a blanket prohibition — not a case-by-case review framework as prediction markets argued.

**The paradox:** If CFTC's own rules prohibit gaming contracts on DCMs, then:
- Prediction market sports contracts may be *federally prohibited*, not federally authorized
- Federal preemption requires a conflict between state law and a *valid federal authorization*
- If the federal regulation prohibits the activity rather than authorizing it, state regulation of the same activity doesn't conflict with federal law — it merely supplements it
- The entire preemption shield depends on DCM authorization being valid, which Rule 40.11 may negate

Nelson's framing: "You either can't do the activity at all, or you're regulated by the state."

This is categorically different from the political capture argument (Sessions 19-20). That was about the *process* being corrupted. This is about the *legal architecture* being internally contradictory.

CLAIM CANDIDATE: "CFTC Rule 40.11's 'shall not list' gaming contracts language creates a federal preemption paradox: if prediction markets are gaming contracts, CFTC's own rules prohibit rather than authorize them on DCMs, eliminating the preemption shield they require"

### 2. The 9th Circuit Panel Is Three Trump Appointees — Hostile Anyway

The panel (Nelson, Bade, Lee) consists entirely of Trump first-term appointees. This was supposed to be the friendly circuit for a Trump-aligned industry. Instead:
- Nelson led sharp critical questioning on Rule 40.11
- Consensus from observers: panel appears likely to rule for Nevada
- At minimum, oral argument posture is deeply unfavorable to prediction markets

Pattern update: The political alignment narrative (Sessions 19-20, Pattern 18) is more fragile than assumed. Even Trump-appointed judges in the 9th Circuit appear skeptical when the legal argument has internal structural weaknesses. Political alignment doesn't override legal reasoning when the argument is weak.

### 3. Circuit Split Now Near-Certain

- **3rd Circuit (April 6):** 2-1 preliminary ruling for Kalshi — CEA preempts state gambling law for DCMs
- **9th Circuit:** Appears likely to rule for Nevada — state law survives against DCMs when CFTC's own rules may prohibit the activity

The 3rd and 9th Circuits are using fundamentally different analytical frameworks:
- 3rd Circuit: Defines preempted "field" as "trading on a DCM" (narrow, favorable to prediction markets)
- 9th Circuit: Starting from Rule 40.11, questioning whether DCM authorization even exists for sports contracts

If the 9th Circuit rules for Nevada, the KB claim `prediction-market-scotus-cert-likely-by-early-2027-because-three-circuit-litigation-pattern-creates-formal-split-by-summer-2026-and-34-state-amicus-participation-signals-federalism-stakes-justify-review.md` gets materially strengthened — the timeline accelerates. The circuit split is no longer hypothetical.

### 4. ANPRM Strategic Silence Hypothesis: WRONG

Session 16 (April 11) hypothesized that industry operators were strategically silent on the ANPRM, leaving the comment record dominated by state gaming opponents. This was wrong:

- 800+ comments already filed with April 30 deadline still 11 days away
- Comments from industry participants, academics, state gaming commissions, AND tribal gaming operators
- CFTC Chairman Selig testified that the comment volume demonstrates strong public engagement

The strategic silence hypothesis was a dead end. Session S16 should be flagged as containing an incorrect pattern. What's more accurate: the ANPRM generated broad participation from both pro- and anti-prediction-market constituencies. The comment record will be contested, not one-sided.

### 5. CFTC Selig: Lone Commissioner + Kalshi Conflict

Selig is the *only sitting CFTC commissioner*. All major prediction market regulatory decisions since his confirmation have come from one person acting alone. Combined with his prior Kalshi board membership (flagged by House Democrats), this creates:

CLAIM CANDIDATE: "CFTC sole-commissioner governance during prediction market rulemaking creates structural concentration risk: all regulatory decisions affecting a projected $1T market flow through one person with prior Kalshi board membership, making current regulatory favorability administration-contingent rather than institutionally durable"

This strengthens the Pattern 18 finding from Session 20: current regulatory wins are political-patronage contingent.

### 6. Insider Trading Enforcement Is Maturing

The enforcement regime has developed a three-tier structure since the Iran ceasefire case (Session 19):
- **Tier 1 (Platform):** Kalshi self-enforcement — two traders sanctioned ($2.2K and $20.4K penalties + suspensions)
- **Tier 2 (CFTC civil):** Zero-tolerance advisory, AI surveillance deployed, David Miller (ex-CIA/SDNY) hired as enforcement director
- **Tier 3 (DOJ criminal):** Active investigation into whether prediction market bets constitute criminal insider trading

This is a mature enforcement ecosystem, not just regulatory rhetoric. The Iran ceasefire case (Session 12) catalyzed institutional action across all three tiers.

CLAIM CANDIDATE: "Prediction market insider trading has developed a three-tier enforcement architecture — platform self-enforcement, CFTC civil enforcement, and DOJ criminal investigation — indicating the problem is treated systemically not episodically"

### 7. MetaDAO: $300M AMM Volume, 11 Projects, $39.6M Raised

Futard.io (the permissionless launchpad) continues generating activity. MetaDAO overall stats:
- 11 ICOs with $39.6M raised (since April 2025: 8 ICOs, $25.6M)
- AMM $300M+ cumulative volume, $1.5M fees
- No specific April 2026 governance metrics found

The launchpad health is good. The regulatory battle is about centralized prediction markets (Kalshi/Polymarket), not about on-chain futarchy governance. These operate on different regulatory tracks for now.

## Disconfirmation Result

**Belief #6: NEWLY STRUCTURALLY CHALLENGED.**

Previous sessions (19-20) weakened Belief #6 on *political* grounds (mechanism quality isn't the actual driver of current wins — political patronage is). Today adds a *legal-architectural* challenge: the Rule 40.11 paradox suggests that DCM authorization for sports contracts may itself be legally invalid under CFTC's own rules, which undermines the foundational preemption argument.

The belief isn't refuted — it may still be correct that mechanism design creates *theoretical* regulatory defensibility. But the specific implementation (Kalshi using DCM status for federal preemption) faces a structural challenge that mechanism design quality cannot fix. If CFTC's own rules prohibit gaming contracts, no amount of Howey test engineering solves the problem.

Confidence in Belief #6: **Further weakened.** Not refuted but the path to defensibility is now contested at the structural level, not just the political level.

## Follow-up Directions

### Active Threads (continue next session)

- **9th Circuit Ruling**: Decision expected within weeks to months. When it drops, immediately archive and update the SCOTUS cert claim. The ruling will either confirm the Rule 40.11 paradox or clarify that the gaming contract definition doesn't cover prediction markets.
- **ANPRM Comment Record Post-April 30**: After the deadline, check what the dominant themes in the 800+ comments were. Did operators make the mechanism design quality argument? Did gaming commissions make the Rule 40.11 argument? The comment record shapes the next rulemaking.
- **Selig ANPRM → Proposed Rule Timeline**: Post-April 30, how long until CFTC converts ANPRM findings into proposed rules? What happens if Selig leaves before rules are finalized?

### Dead Ends (don't re-run these)

- **"ANPRM strategic silence" search**: Session 19/20 hypothesis that operators weren't filing comments. Wrong. 800+ comments. Don't re-run this angle.
- **"Rasmont 2026 response" direct search**: No academic response exists (checked Sessions 19, 20, and this session). The KB claim candidate from Session 20 (separability argument) is as far as available evidence allows. Don't search for a published Rasmont rebuttal — it doesn't exist yet.

### Branching Points

- **Rule 40.11 paradox claim**: This is either (a) a narrow technical argument Nelson tried and will fail in the written opinion, or (b) a structural flaw that could reshape the legal landscape if the 9th Circuit adopts it. Direction A: archive as context and wait for the ruling. Direction B: write a formal claim about the Rule 40.11 paradox. **Pursue Direction A first** — don't commit to the claim until the ruling drops. But the source archives today should preserve Nelson's framing for future extraction.
- **CFTC sole-commissioner concentration claim**: This could be a legitimate KB claim (structural concentration risk in prediction market governance) or could age out quickly (Senate confirms additional commissioners before rulemaking completes). **Pursue as a time-sensitive claim candidate** — conditions are real NOW and should be documented even if they change.

## Sources Archived This Session

8 sources:
1. ingame.com — 9th Circuit oral argument, Nelson's Rule 40.11 framing
2. hklaw.com — 3rd Circuit preemption analysis
3. bettorsinsider.com — CFTC Selig testimony
4. cointelegraph.com — SCOTUS pathway analysis
5. defirate.com — 9th Circuit gaming vs. swaps debate
6. covers.com — Appeals judges signal trouble for prediction markets
7. pymnts.com — CFTC insider trading enforcement
8. mindcast-ai.com — 9th Circuit Kalshi structural analysis
