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was sustained by the Court of Appeals; and this Court, citing many decisions in which the doctrine of Swift v. Tyson had been applied, affirmed the decree.

Second. Experience in applying the doctrine of Swift v. Tyson, had revealed its defects, political and social; and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity;' and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties."

On the other hand, the mischievous results of the doctrine had become apparent. Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State. Swift v. Tyson introduced grave discrimination by non-citizens against citizens. It made rights enjoyed under the unwritten "general law” vary according to whether enforcement was sought in the state

Compare Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 209. The conflicts listed in Holt, The Concurrent Jurisdiction of the Federal and State Courts (1888) 160 et seq. cover twenty-eight pages. See also Frankfurter, supra note 6, at 524-30; Dawson, supra note 6; Note, Aftermath of the Supreme Court's Stop, Look and Listen Rule (1930) 43 Harv. L. Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa. L. Rev. 869, 881-86. Moreover, as pointed out by Judge Augustus N. Hand in Cole v. Pennsylvania R. Co., 43 F. 2d 953, 956-57, decisions of this Court on common law questions are less likely than formerly to promote uniformity.

8 Compare 2 Warren, The Supreme Court in United States History (rev. ed. 1935) 89: "Probably no decision of the Court has ever given rise to more uncertainty as to legal rights; and though doubtless intended to promote uniformity in the operation of business transactions, its chief effect has been to render it difficult for business men to know in advance to what particular topic the Court would apply the doctrine. . . ." The Federal Digest, through the 1937 volume, lists nearly 1000 decisions involving the distinction between questions of general and of local law.

or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the non-citizen. Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the State.

10

The discrimination resulting became in practice farreaching. This resulted in part from the broad province accorded to the so-called "general law" as to which federal courts exercised an independent judgment." In addition to questions of purely commercial law, "general law" was held to include the obligations under contracts entered into and to be performed within the State,11 the extent to which a carrier operating within a State may stipulate for exemption from liability for his own negligence or that of his employee; 12 the liability for torts committed within the State upon persons resident or property located there, even where the question of lia

9

It was even possible for a non-resident plaintiff defeated on a point of law in the highest court of a State nevertheless to win out by taking a nonsuit and renewing the controversy in the federal court. Compare Gardner v. Michigan Cent. R. Co., 150 U. S. 349; Harrison v. Foley, 206 Fed. 57 (C. C. A. 8); Interstate Realty & Inv. Co. v. Bibb County, 293 Fed. 721 (C. C. A. 5); see Mills, supra note 4, at 52.

10 For a recent survey of the scope of the doctrine, see Sharp & Brennan, The Application of the Doctrine of Swift v. Tyson since 1900 (1929) 4 Ind. L. J. 367.

11 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518; Rowan v. Runnels, 5 How. 134, 139; Boyce v. Tabb, 18 Wall. 546, 548; Johnson v. Chas. D. Norton Co., 159 Fed. 361 (C. C. A. 6); Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221 (C. C. A. 8).

12 Railroad Co. v. Lockwood, 17 Wall. 357, 367-68; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 443; Eels v. St. Louis, K. & N. W. Ry. Co., 52 Fed. 903 (C. C. S. D. Iowa); Fowler v. Pennsylvania R. Co., 229 Fed. 373 (C. C. A. 2).

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bility depended upon the scope of a property right conferred by the State; 13 and the right to exemplary or punitive damages.1 Furthermore, state decisions construing local deeds, 15 mineral conveyances,16 and even devises of real estate were disregarded.18

17

In part the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the diversity of citizenship jurisdiction. Through this jurisdiction individual citizens willing to remove from their own State and become citizens of another might avail themselves of the federal rule.1o And, without even change of residence, a corporate citizen of

13 Chicago v. Robbins, 2 Black 418, 428. Compare Yates v. Milwaukee, 10 Wall. 497, 506-07; Yeates v. Illinois Cent. R. Co., 137 Fed. 943 (C. C. N. D. Ill.); Curtis v. Cleveland, C. C. & St. L. Ry. Co., 140 Fed. 777 (C. C. E. D. Ill.). See also Hough v. Railway Co., 100 U. S. 213, 226; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368; Gardner v. Michigan Cent. R. Co., 150 U. S. 349, 358; Beutler v. Grand Trunk Junction Ry. Co., 224 U. S. 85; Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66; Pokora v. Wabash Ry. Co., 292 U. S. 98; Cole v. Pennsylvania R. Co., 43 F. (2d) 953 (C. C. A. 2). 14 Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 106; Norfolk & P. Traction Co. v. Miller, 174 Fed. 607 (C. C. A. 4); Greene v. Keithley, 86 F. (2d) 239 (C. C. A. 8).

15 Foxcroft v. Mallet, 4 How. 353, 379; Midland Valley R. Co. v. Sutter, 28 F. (2d) 163 (C. C. A. 8); Midland Valley R. Co. v. Jarvis, 29 F. (2d) 539 (C. C. A. 8).

16 Kuhn v. Fairmont Coal Co., 215 U. S. 349; Mid-Continent Petroleum Corp. v. Sauder, 67 F. (2d) 9, 12 (C. C. A. 10), reversed on other grounds, 292 U. S. 272.

17 Lane v. Vick, 3 How. 464, 476; Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83, 99-100; Messinger v. Anderson, 171 Fed. 785, 791-792 (C. C. A. 6), reversed on other grounds, 225 U. S. 436; Knox & Lewis v. Alwood, 228 Fed. 753 (S. D. Ga.).

18 Compare, also, Williamson v. Berry, 8 How. 495; Watson v. Tarpley, 18 How. 517; Gelpcke v. City of Dubuque, 1 Wall. 175.

19 See Cheever v. Wilson, 9 Wall. 108, 123; Robertson v. Carson, 19 Wall. 94, 106–07; Morris v. Gilmer, 129 U. S. 315, 328; Dickerman v. Northern Trust Co., 176 U. S. 181, 192; Williamson v. Osenton, 232 U. S. 619, 625.

the State could avail itself of the federal rule by re-incorporating under the laws of another State, as was done in the Taxicab case.

The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction.20 Other legislative relief has been proposed.21 If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century.22 But the uncon

20 See, e. g., Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S. 937, S. 939, and S. 3243, 72d Cong., 1st Sess. (1932) 6-8; Hearing Before the House Committee on the Judiciary on H. R. 10594, H. R. 4526, and H. R. 11508, 72d Cong., 1st Sess., ser. 12 (1932) 97-104; Sen. Rep. No. 530, 72d Cong., 1st Sess. (1932) 4-6; Collier, A Plea Against Jurisdiction Because of Diversity (1913) 76 Cent. L. J. 263, 264, 266; Frankfurter, supra note 6; Ball, supra note 6; Warren, Corporations and Diversity of Citizenship (1933) 19 Va. L. Rev. 661, 686.

21 Thus, bills which would abrogate the doctrine of Swift v. Tyson have been introduced. S. 4333, 70th Cong., 1st Sess.; S. 96, 71st Cong., 1st Sess.; H. R. 8094, 72d Cong., 1st Sess. See also Mills, supra note 4, at 68-69; Dobie, supra note 6, at 241; Frankfurter, supra note 6, at 530; Campbell, supra note 6, at 811. State statutes on conflicting questions of "general law" have also been suggested. See Heiskell, supra note 4, at 760; Dawson, supra note 6; Dobie, supra note 6, at 241.

22 The doctrine has not been without defenders. See Eliot, The Common Law of the Federal Courts (1902) 36 Am. L. Rev. 498, 523-25; A. B. Parker, The Common Law Jurisdiction of the United States Courts (1907) 17 Yale L. J. 1; Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Ill. L. Rev. 533; Brown, The Jurisdiction of the Federal Courts Based on Diversity of Citizenship (1929) 78 U. of Pa. L. Rev. 179, 189-91; J. J. Parker, The Federal Jurisdiction and Recent Attacks Upon It (1932) 18 A. B. A. J. 433, 438; Yntema, The Jurisdiction of the Federal Courts in Controversies Between Citizens of Different States (1933) 19 A. B. A. J. 71, 74–75; Beutel, Common Law Judicial Technique and the Law of Negotiable InstrumentsTwo Unfortunate Decisions (1934) 9 Tulane L. Rev. 64.

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Opinion of the Court.

stitutionality of the course pursued has now been made clear and compels us to do so.

Third. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. As stated by Mr. Justice Field when protesting in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 401, against ignoring the Ohio common law of fellow servant liability:

"I am aware that what has been termed the general law of the country-which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject-has been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States-independence in their legislative and inde