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THe DoDD-FraNK aCT aND FeDeral PreemPTIoN

reau’s view, sufficient. However, this general preemption authority is not particularly extensive. First, the Act makes clear that this authority does not affect the preemption provisions in any “enumerated consumer law.”8 Sec- ond, although the Act is silent on the issue, courts should be able to review and reverse Bureau determinations that are not entitled to judicial deference.9 Lastly, the Act codifies a separate preemption standard for national banks and federal savings associations.

national Banks, Federal savinGs associations and PreemPtion under tHe BARNETT standard

The Act codifies a new standard for national banks and federal savings associations that preempts “state consumer financial laws.” For purposes of this standard, a “state consumer financial law” is any state law “that does not directly or indirectly discriminate against national banks and that directly and specifically regulates the manner, content, or terms and conditions of any financial transaction…, or any account related thereto, with respect to a consumer.”10 Thus, in order to qualify as a “state consumer financial law,” the law must: (1) not discriminate against national banks; (2) specifically regulate “the manner, content, or terms and conditions” of financial transactions or accounts; and (3) regulate such manner, content, or terms and conditions “with respect to a consumer.” Consumer financial laws that do not meet these criteria are not covered by the new preemption requirement.

Preemption of state consumer Financial laws for national Banks

A state consumer financial law is preempted if, “in accordance with the legal standard for preemption in…Barnett Bank of Marion Count , N.A. v. Nelson11…the [s]tate consumer financial law prevents or significantly inter- feres with the exercise by the national bank of its powers.”12 For purposes of the section, a “national bank” includes any bank organized under federal law and any federal branch established under the International Banking Act of 1978.

The language of the Act closely tracks language used in Barnett and was intended to adopt the Barnett preemption standard.13 In Barnett, the Court


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