What considerations do courts consider when determining whether a bank is subject to partial preemption from a state's anti-discrimination legislation?

The value of uniformity underscores the second consideration supporting full preemption. A finding of partial preemption strikes at the essential nature of a national banking system, which depends upon "uniform and universal operation throughout the entire territorial limits of the country...." (Talbott v. Silver Bow County (1891) 139 U.S. 438, 443, 11 S.Ct. 594, 35 L.Ed. 210.) While the system might tolerate a certain measure of local diversity, "it would militate much against its national character" if banks were subject

[91 Cal.Rptr.2d 686]

to particular laws in one state but not in another. (Ibid.) As we have seen, courts are divided as to whether state antidiscrimination statutes survive section 24, Fifth. Moreover, each state has a different statutory scheme, both substantive and procedural. Thus, depending upon the jurisdiction in which a claim arose, a bank might or might not be subject to liability, the extent of which would remain uncertain until some court adjudicated the scope of the local law.

[91 Cal.Rptr.2d 686]