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THe baNKING laW JourNal

law. The latter situation is outside the scope of this article, and the former seems like a remote possibility: few laws, if any, would have a discriminatory effect on national banks, and even fewer would have a discriminatory effect on national banks while not “directly or indirectly” discriminating against them. In a colloquy just prior to the Senate’s passage of Dodd-Frank, Senator Thomas Carper stated that the legislation “maintains the Barnett standard for determining when a State law is preempted.” Senator Chris Dodd replied: “The Senator is correct. That is why the conference report specifically cites the Barnett Bank…case. There should be no doubt that the legislation codifies the preemption standard stated by the U.S. Supreme Court in that case.” 156 CONG. REC. S5,902 (daily ed. July 15, 2010) (statements by Sen. Carper and Sen. Dodd). Barnett, 517 U.S. at 28. Explicit preemption occurs where a federal law directly states that it preempts state law. Field preemption occurs when the statute is so pervasive that one may infer that Congress intended to preempt state law in the entire field that the statute addresses. Cf. Barnett, 517 U.S. at 31. Id. (citation omitted). Id. (citations omitted). Id. Id. at 32. Id. at 33. Id. Id. at 37-38. A separate provision added to the National Bank Act makes clear that state consumer financial laws apply to subsidiaries and affiliates that are not national banks to the same extent that they apply to any other entity subject to state law. Dodd- Frank § 1044(a). 550 U.S. 1 (2007). atters, 550 U.S. at 12. Id. at 12-13. Id. at 18-19. Id. at 20-21 (citing 12 C.F.R. § 7.4006 (2006)). atters, 550 U.S. at 21 (citing Barnett). Dodd-Frank §§ 1044(a), 1045 (no provision of the National Bank Act preempts state law with respect to subsidiaries, affiliates or agents of national banks unless they are also national banks). atters, 550 U.S. at 21. Dodd-Frank § 1044(a). Id. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33


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