350 HARVARD LAW REVIEW. suspicion. Granting that the case is one to which the general rule is not applicable, what need is there for any rule of administration beyond those provided by the principles of law which the facts in- volve? The necessity for a special rule of administration extends only to a demarcation of the cases in which the last State decision should not be followed, and the inquiry properly should be, not whether the first and overruled decision is permissible, but whether the last decision, changing the law, can reasonably be upheld. If not, a fair presumption is afforded that the law was made for the particular case and to the special prejudice of an alien. In such a case the Federal court may well say : To follow this decision would defeat the end of our jurisdiction, and we refuse to do so. The question of permissible interpretation, the writer suggests with all deference, appears to be misplaced, and should be directed not to the decision in view of which the contract was made, but to the decision overruling it. The Supreme Court of a State has the undoubted right to overrule its own decisions, that is, to change the law of the State ; and except in the one case of a decision against an alien so palpably contrary to reason as to afford a presumption that the court was influenced by local prejudice, it is the duty of the Federal court in applying the law of the State to follow the State court and to acquiesce in the change. Such a rule would introduce no new and hitherto unsuspected principle into the law of contracts, and would abundantly answer the pur- pose of the jurisdiction. The object of discussing these different views of the case has been to show that the decision in Gelpcke v. Dubuque cannot be supported without an appeal to the now discredited Federal ques- tion. This appeal the judges who decided that case had no hesi- tation in making, and, having made it, they declared that the decision of a court of final resort was the law, — was, in fact, precisely equivalent to a statute, and fell equally within the con- stitutional prohibition. The result of comparing these famous cases in their bearing upon the extent of legislative power to be attributed to the decisions of courts, if the above reasoning is not unsound, is to perplex the student with an unavoidable, though unintentional, contradiction in the decisions of the Supreme Court. The many decisions upon the authority of Swift v. Tyson declare that the decisions of courts of justice do not make the law, whereas the cases that follow Gelpcke v. Dubuque as confidently assert the con-
