ry. But the unconstitutionality of
the course pursued has now been made clear and compels us to do so.
* * * There is, [he continued], 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."[551] After quoting Justice Field and Justice Holmes on the
unconstitutionality of the Tyson rule, Justice Brandeis made it clear
that the Court was not invalidating Sec. 34 of the Federal Judiciary Act
of 1789, but was merely declaring that the Supreme Court and the lower
federal courts had, in their application of it, "invaded rights which
* * * are reserved by the Constitution to the several States."[552]

Justice Butler, joined by Justice McReynolds, concurred in the result,
because in his view Tompkins was not entitled to damages under general
law, but he deprecated the reversal of Swift _v._ Tyson. He also
objected to the decision of the constitutional issue as
unnecessary.[553] Justice Reed likewise concurred, but thought it
questionable to raise the constitutional issue. "If the opinion, [said
he], commits this Court to the position that the Congress is without
power to declare what rules of substantive law shall govern the federal
courts, that conclusion also seems questionable."[554]

Extension of the Tompkins Rule

Since 1938 the federal courts have been most assiduous in following the
decisions of the State courts in diversity cases. The decisions
followed, moreover, include not only those of the highest State courts,
but those also of intermediate courts. In West _v._ American Telephone
and Telegraph Co.[555] the Supreme Court held that a decision of an Ohio
county court of appeals which the Supreme Court of the State had
declined to review was binding on the lower federal courts regardless of
the desirability of the rule of the decision or of the belief that the
highest court of the State might establish a different rule in future
litigation. In Fidelity Union Trust Co. _v._ Field[556] the Court went
even farther and ruled that the lower courts were bound to follow the
decisions of two chancery courts in New Jersey although there had been
no appeal to the highest State court, and obviously other New Jersey
courts were not bound by the decisions of two vice-chan