The first issue of Volume 46 of the University of Louisville Law Review will publish the following articles:

Beyond Blame--Mens Rea and Regulatory Crime by Arthur Leavens

National Banks and Diversity Jurisdiction by Paul E. Lund

ABSTRACT

National banks' access to federal diversity jurisdiction is governed by a special federal statute, 28 U.S.C. § 1348, which provides that national banks shall "be deemed citizens of the States in which they are located." Since 1994, when national banks first became authorized to operate interstate branches, the federal courts were divided on the proper interpretation of the word "located" in section 1348. The Fourth Circuit and some other federal courts read the term to encompass every state in which the bank operated a branch office. The Supreme Court's 2006 decision in Wachovia Bank, N.A. v. Schmidt, though, adopted the more restrictive view of the term, finding that it includes only the state in which the bank maintains its main office.

This article begins by tracing the statutory history that led to current section 1348 and then summarizes the lower court interpretations of that statute. The article then examines the Supreme Court's rationale in Wachovia Bank and identifies the significant holes in that rationale. It points out that the Court ignored some of its own long-standing principles of statutory interpretation, including its presumption that diversity statutes are to be restrictively construed. The article also identifies two significant inconsistencies that the Court's opinion creates and that the courts or Congress likely will be called upon to address: the disparity between the jurisdictional treatment of national banks and other federally-chartered financial institutions, and the especially favorable access to federal court that two of the country's largest national banks are likely to receive as a result of the Court's ruling.

The Essential Kafka: Definition, Distention, and Dilution in Legal Rhetoric by Brian Pinaire.

ABSTRACT

This Article presents a case-study evaluation of rhetorical invocations of Franz Kafka as they appear in American legal arguments. Drawn from an analysis of 1,069 legal documents (rulings, briefs, and commentary), the data indicate that 90% of appeals to Kafka arise in one of three principal rhetorical modes: "authority," "absurdity," and "predicaments," constituting what we might think of as the "essential" Kafka. Within these modes, however, certain allusions to Kafka demonstrate a phenomenon that I refer to as "distention," particularly as invocations exhibit one or more basic tendencies toward expansion, enervation, discordance, and conflation in meaning, ultimately tending to dilute the rhetorical maneuver of the precision and integrity it might otherwise reserve-and deserve. As we will see though, the implications of this case study in the (d)evolution of a legal rhetorical device extend well beyond the instant concern and invite us to think more broadly and seriously about the significance of definitions in legal arguments, especially as they shape the central policy and political questions of our day (e.g. the practices sustaining the "War on Terror").

The first issue will also contain the following student notes:

Reinstatement of Removal and IIRIRA Retroactivity after Fernandez-Vargas v. Gonzales: Restoring Section 212(c) Discretion and Fairness to Immigration Law (Best Note for Volume 46) by Brent Asseff.

"The War on People": Reframing "The War on Drugs" by Addressing Racism Within american Drug Policy Through Restorative Justice and Community Collaboration (Best Note Honorable Mention for Volume 46) by Andrew D. Black.

Collateral Damage: How Closing Juvenile Delinquency Proceedings Flouts the Constitution and Fails to Benefit the Child by Courtney R. Clark.