Welcome to our first episode of the LexBeyond podcast. We are really excited to have you here. Our hosts, Lex and Bianca discuss the Investing vs. Gambling trap and its potential ramifications. We’ve included some show notes for you below with a key timestamp. Enjoy!
This podcast is about the investing vs. gambling contrast being problematic. That said, the gambling vs. gaming contrast is an adjacent issue. We’ve covered that in detail in a post on our sister blog Full Court Press. We have also discussed that issue extensively in our Supreme Court amicus brief (PDF) in Murphy v. NCAA. Feel free to deep dive into those pieces, but long story short, our position is:
Gaming involves games and is a state matter. Gambling, on the other hand, is a state matter if it involves games and a federal matter if it involves futures markets.
(2:29) Bianca says “[Gambling] is tied to specific state gaming laws.” That is true as far as games are concerned. It is also true that states have relied on, and are still relying on their state gaming laws to assert jurisdiction on commodity futures trading. That is the preemption issue that is at the heart of the litigation surrounding sports event contracts, see our coverage on Full Court Press. We are also working on a book that explores the tug-of-war between state and federal jurisdiction: Field (to be published in 2026).
When we talk about economic purpose, we are well aware that the “economic purpose test” is repealed - but we are of the view that it is still the relevant guiding principle, well, because, there isn’t anything else. So, as far as the Dodd-Frank Act and the Special Rule is concerned:
We believe gaming means gambling (PDF). Prediction markets would disagree.
See you next week.
