THE TYSON RULE IN PRACTICE
THE Supreme Court decisions reviewed in the preceding two chapters of this study brought the doctrine of federal independence to its high water mark. Had Kuhn v. Fairmont Coal Co. and Gelpcke v. Dubuque1 been typical cases instead of outposts of judicial doctrine, state control over local law would certainly have disintegrated. But the national judiciary was not always disposed to exercise its power to the full or to stretch Supreme Court opinions to the outermost limits of their implications.
This was particularly true where state statutes were concerned. Although George Wharton Pepper,2 writing when the Bond Cases and Watson v. Tarpley were current history, correctly interpreted the apparent trends of the time, later decisions of the Supreme Court were less bold in their disregard of opinions rendered by state courts. The Gelpcke Case did not purport to disturb the general rule laid down by Story in Swift v. Tyson when he said that Section 34 of the Judiciary Act of 1789 directed federal courts to follow local interpretations of state statutes. Instead, the opinion proceeded to except those cases wherein local courts had changed their rulings during the interval between the formation of a contract and the bringing of suit. In this restricted class of situations, state statutes and constitutions were not immune from independent federal scrutiny. But in all other instances, the protection afforded by the Judiciary Act and recognized by Story was to continue. Opinions of the Supreme Court handed down after the turn of the century generally took this view.3____________________