GLUS v. G. C. MURPHY CO

[49] SLOVITER, Circuit Judge, dissenting.

I depart from the opinion of my colleagues because it assumes unto the judiciary the authority to make a federal common law of contribution for a claim arising out of a federal statute which does not expressly provide for contribution, does not imply that contribution is authorized, and does not require contribution for the effectuation of its purposes. I do not disagree with the majority regarding the existence of judicial power to formulate common law. The explanation that Justice Brandeis' broad statement "[t]here is no federal general common law" has opened the way to "specialized federal common law" is now well established. Nor do I disagree with the assumption implicit in the majority opinion that the need for uniformity in application of this federal statute requires us to look to federal, rather than state, law. However, I believe the judicial task of establishing, formulating or discovering federal common law is qualitatively different from the judicial task of filling in the interstices of congressional acts. It is a difference which the majority has not addressed. It underlies my different interpretation of the relevant precedent and leads me to a different result in this case.

I believe it will be useful to begin analysis by some review, however cursory, of the instances in which the Supreme Court has assumed lawmaking power. This should assist in placing in perspective the question as to whether exercise of such power is appropriate in this situation. Without undertaking to make a comprehensive categorization, it is frequently suggested or posited that federal common law has been undertaken in the following instances: (1) where the Constitution provides exclusive jurisdiction in the federal courts and no federal statute supplies the rule of law; (2) where a federal statute provides federal jurisdiction but does not supply the rule of law; (3) where a federal statute provides the rule of law but is silent on the existence of a private cause of action; and (4) where a federal statute provides both a cause of action and the rule of law, but has left what has been denominated as "interstices".

The circumstances in which the establishment of federal common law is the most inevitable arise where the federal courts have been given exclusive jurisdiction by the Constitution, but where Congress has not legislated to supply a rule of law. Historically, this has arisen most frequently in instances of disputes between states and in maritime cases.

Disputes between the states have often concerned their respective rights to water resources or controversies over boundary lines. One example suffices to illustrate why establishment of federal common law was required as a matter of sheer necessity. In attempting to resolve the dispute between Kansas and Colorado regarding their respective rights in the waters of the Arkansas river, the Court articulated not only the necessity of making a judicial decision but also of formulating federal common law. The Court recognized that if the two states were independent nations, their dispute over whether Colorado could divert river water which arose in that state could be settled by force. Resort to force was eliminated under our federal system of government, so the solution to the dispute must, of necessity, be made by judicial determination. Kansas v. Colorado, 206 U.S. 46, 97, 27 S.Ct. 655, 667, 51 L.Ed. 956 (1907). Since disputes between the states are within the exclusive jurisdiction of the federal courts, there was no other judicial forum which could have heard the dispute.

Although establishment of federal common law was not strictly mandated, because presumably the Court could have decided to follow an already established fixed reference point, as a practical matter there was no such fixed reference point. Each state recognized opposing legal principles. Kansas recognized the common law of riparian rights, while Colorado recognized public ownership of flowing waters. Accordingly the Court determined to "apply Federal law, state law, and international law, as the exigencies of the particular case may demand." Kansas v. Colorado, 185 U.S. 125, 147, 22 S.Ct. 552, 560, 46 L.Ed. 886 (1902). The Court recognized that through these successive disputes between the states and its own decisions, it was "practically building up what may not improperly be called interstate common law." Kansas v. Colorado, 206 U.S. at 98, 27 S.Ct. at 667. Subsequent cases have followed that lead. even when the same rule of common law was applied in both states, the Court held that it was not bound to follow that rule as part of the federal common law. Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S.Ct. 286, 289, 75 L.Ed. 602 (1931). Neither the statutes nor decisions of either state can be conclusive on the issue of apportionment between the two contesting states because the question is one of federal common law. Hinderlider v. La Plata River Cherry Creek Ditch Co., 304 U.S. 92, 110, 58 S.Ct. 803, 810, 82 L.Ed. 1202 (1938).

If the interstate nature of a controversy makes it inappropriate that the law of a particular state should govern, a fortiori the necessity to make law in admiralty cases also requires search for a broader base. The Court has frequently stated that "Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law." United States v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708, 1715, 44 L.Ed.2d 251 (1975) (quoting Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963)). See also Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405 n. 17, 90 S.Ct. 1772, 1790, 26 L.Ed.2d 339 (1970); Kermarec v. Compagnie Gerale Transatlantique, 358 U.S. 625, 630-32, 79 S.Ct. 406, 409-410, 3 L.Ed.2d 550 (1959). In such cases, because of the absence of statutory law, the Court is required to make law, and it deems itself free to formulate flexible and fair remedies in the law maritime. United States v. Reliable Transfer Co., 421 U.S. at 409, 95 S.Ct. at 1714.

A similar construction of federal common law has been found necessary when the suit involves the rights and duties of the United States in the issuance of commercial paper, because the application of state law would subject the rights and duties of the United States to exceptional uncertainty. Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 502 (1943). See also Priebe Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32 (1947); National Metropolitan Bank v. United States, 323 U.S. 454, 456, 65 S.Ct. 354, 355, 89 L.Ed. 383 (1945); United States v. Standard Rice Co., 323 U.S. 106, 111, 65 S.Ct. 145, 147, 89 L.Ed. 104 (1944). The Court has also stated that federal law should be applied where property rights of the United States are litigated. United States v. Standard Oil Co., 332 U.S. 301, 306, 67 S.Ct. 1604, 1607, 91 L.Ed. 2067 (1947).

In yet another area, the Court has iterated the power of the federal courts to make law. In a judicial dispute affecting relations with foreign nations, the Court noted the "uniquely federal" nature of the problems involved. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 424, 84 S.Ct. 923, 938, 11 L.Ed.2d 804 (1964). As in the other instances of establishment of federal common law which fall within this category, the Court might have turned to state law to supply the rule of decision. In the Sabbatino case, the state of New York had previously enunciated the act of state doctrine, which was the doctrine ultimately reaffirmed by the Court in its determination of federal common law. Nonetheless, the Court emphatically asserted that the issue was one of federal law and it undertook to make the substantive law decision:

However, we are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law. It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins. Soon thereafter, Professor Philip C. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to legal problems affecting international relations. He cautioned that rules of international law should not be left to divergent and perhaps parochial state interpretations. His basic rationale is equally applicable to the act of state doctrine.

Id. at 425, 84 S.Ct. at 939 (footnotes omitted).

The conclusion which emerges from a reading of these cases is that establishment of a federal common law in this category of cases was compelled by considerations of federalism and the constitutional distribution of powers between the federal government and the states.

A situation somewhat analogous to that posed by cases in the first category is presented when federal common law must be created or determined because a federal statute supplies federal jurisdiction but does not supply the substantive rule of law. The principal example of this arose from section 301(a) of the Labor Management Relations Act of 1947 which, as construed in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), obliged the courts to fashion substantive federal law from the policy of our national labor law. The Court construed its task and its reference point as follows:

The range of judicial inventiveness will be determined by the nature of the problem. Federal interpretation of the federal law will govern, not state law. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.

Id. at 457, 77 S.Ct. at 918 (footnotes omitted).

Justice Frankfurter dissented not because he thought state law should be applied, but because he believed that the allocation of institutional function was seriously wrong. Id. at 464-65, 77 S.Ct. at 924-925. The Court might have refused to perform the function imposed on it by Congress because of the non-judicial nature of that function, and presumably, Congress would then have been forced to fill the gap either by creating statutory substantive law or selecting a fixed reference point. However, having failed to do so, the nature of the Court's task in formulating federal common law is not substantially different from that required of it in the situations which come within category 1 above.

The third category of cases which have sometimes been referred to as those in which the courts create federal common law deals with the question of the circumstances under which the courts should imply a federal cause of action. In its most frequent form, the question arises as to the implication of a federal cause of action when a statute creates obligations and a substantive rule of conduct, but is silent on whether a private right of action should be permitted for violation of the rule of conduct. The majority opinion refers to the analysis of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), as helpful because the Court turned to the relevant legislation to determine whether "the common law action exists." At p. 255. However, analytically, the judicial task in framing, creating or uncovering federal common law which must be performed under the instances falling within categories 1 and 2 above is substantially different from that which is required in deciding whether a private right of action should be implied. In the latter situation, there is no need to make law, as such. The fixed reference point is given, since it is the statute which creates the obligation itself. The judicial function is simply the ascertainment of legislative intent, and the rules for its ascertainment have been established by the Court. Indeed, some policy analysis is needed but it is policy analysis in the context of articulated legislative action. However difficult the task may be to divine legislative intent from sometimes obscure origins, the result of the inquiry as to whether a federal cause of action should be implied is a one-word answer, either yes or no. Having decided on that answer, no further judicial legislation is needed.

On any given day in which opinions are announced, the Supreme Court must decide numerous issues of statutory construction. Selecting at random a recent day, February 20, 1980, six of the eight opinions announced involved a Congressional statute and required that the Justices attempt to clarify an issue left unresolved by the statutory language. For example, in Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980), the issue was whether a "civil action" as used in section 2 of the Mandamus and Venue Act of 1962, 28 U.S.C. § 1391(e), providing expanded choice of venue in suits against federal officers, was limited to mandamus-type actions. Chief Justice Burger, writing for the majority, noted the familiar tenet of statutory construction that, in interpreting a statute, "the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the object and policy of the law . . .." (quoting Brown v. Duchesne, 60 U.S. 183, 194 (19 How.) 15 L.Ed. 595 (1857)). In Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 100 S.Ct. 800, 63 L.Ed.2d 36 (1980), the Court was obliged to determine whether Section 506 of the Merchant Marine Act, 1936, 46 U.S.C. § 1151 et seq., gave the Secretary of Commerce authority to release subsidized vessels from the foreign-trade only requirement upon full repayment of the subsidy. Despite the absence of any explicit statutory language to that effect, the Court determined that the deletion of the prior explicit authorization did not represent a considered congressional judgment that the transaction should be prohibited. In California Brewers Association v. Bryant, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980), the Court had to determine the meaning of the words "seniority system" used in Section 703(h) of Title VII of the Civil Rights Act of 1964, which are not comprehensively defined in either the statute or the legislative history. In United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980), the language of a section of the Internal Revenue Code, 26 U.S.C. § 7602, requiring persons summoned to "appear" and "give testimony", was construed to authorize the obligation to provide handwriting exemplars although the section does not, by its terms, compel such production.

In each of these cases, one could contend that there were statutory interstices. Certainly, no statutory language resolved the issue definitively. However, it would be imparting too much to the Court's interpretive function to view the process as one of lawmaking. It is impossible for the legislature to anticipate every possible issue of interpretation that may arise in the application of a statutory scheme, and hence it is inevitable that there will be unintended gaps in legislation. Other gaps may result from a legislative unwillingness or inability to resolve a delicate issue. The nature and importance of the gaps may vary. But the touchstone of judicial responsibility in dealing with such statutory gaps is to ascertain, to the best extent possible, the Congressional intent, and to interpret the statute in light of the statutory scheme. There is a fixed reference point — the statutory provision, other language in the statute, and the legislative intent — which delimits the parameter of judicial action.

One need only compare that limited task with the one assumed by the Supreme Court when it makes federal common law to see the magnitude of the difference. When the courts act as lawmakers they are free to roam through the fields of scholarly lore and policy considerations to select rules they deem appropriate. When the issue is not controlled by statutory or constitutional provisions or by past decision, the court is free to select the rule which it believes is the fairest and easiest to apply administratively. See Texas v. New Jersey, 379 U.S. 674, 677, 85 S.Ct. 626, 628, 13 L.Ed.2d 596 (1965). It can accept those arguments it deems sound, and, by judicial fiat, impose that law on the parties. See United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975).

There is no such freedom in the judicial task of filling in interstices of federal statutes where we must follow the lodestar of Congressional intent. The difference between the two tasks is in large part a function of different constitutional underpinnings. When the federal courts fashion federal common law as lawmakers, they are acting to assert the supremacy of national law which is a fundamental rock on which our federal system is hewn. On the other hand, when the federal courts fill in interstices or attempt to determine if a private right of action should be implied from a federal statute, the courts are acting on a far different basis — that which stems from the constitutional allocation of power among the branches of government.

In the cases which fall within categories 3 and 4, there is no issue whether federal law should govern. That decision was already made by Congress, whose intent must be carried out if the separation of powers given to each branch of government are to be observed. In contrast, the formulation of federal common law does not on its face raise any issue of allocation of powers. In fact, in these cases where common law has been made, one may consider the courts' lawmaking as implicitly authorized by Congress because it failed to fill in the gap left by the constitutional grants of jurisdiction. Congress could act, if it deemed it appropriate to do so, since it is unlikely that the federal judiciary has broader lawmaking power in federal matters than Congress has. Although there has been some suggestion that the Court's opinion in Sabbatino was asserting judicial power to make law independent of the other branches of the national government, there are other more conservative bases on which to read that opinion.

The majority opinion relies on the decision in Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), as authority for the power it asserts to make common law when "necessary for the fulfillment of the legislative purpose." At p. 253. It appears that the majority reads that decision as one falling within the category authorizing courts to fill in statutory interstices. I do not read the case that way, but instead believe that it falls within the category 1 cases where there is federal jurisdiction but no applicable federal statute. In that case, Illinois sued Milwaukee to abate the public nuisance caused by its discharge of pollution into Lake Michigan, a body of interstate water. There was no federal statute which applied. Had there been, the issue might have been whether private suit was authorized, as in Cort v. Ashe, but there would have been no occasion for the Court to decide whether it had original jurisdiction on the basis of plaintiff's status as a state.

Furthermore, if there had been an applicable statute, that statute would have qualified as a "law" of the United States within the meaning of 28 U.S.C. § 1331(a) (1976), and there would have been no occasion for the Court to decide that federal common law is within the meaning of "laws" for purposes of § 1331(a). Although there were several congressional statutes which touched upon the field of water pollution, their inapplicability obliged the Court to decide whether there was a federal common law of nuisance. It did so by relying on the cases previously discussed here in connection with category 1: "When we deal with air and water in their ambient or interstate aspects, there is a federal common law . . .," id. at 103, 92 S.Ct. at 1392. The Court specifically recognized the inapplicability of any federal statute:

It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution. . . . There are no fixed rules that govern; these will be equity suits in which the informed judgment of the chancellor will largely govern.

Id. at 10748, 92 S.Ct. at 1395 (footnotes omitted). The basic difference between the situation in Illinois v. City of Milwaukee, Wisconsin and that in the cases of statutory interstices, such as we have here, is that in the latter category, federal courts are not free to "appraise the equities", but must leave that function to Congress.

In fulfilling our function as interpreters, we must be guided by the principle that we must not overstep into the legislature's domain, for reasons of both principle and pragmatics. As Judge Friendly has commented:

[T]he legislature's superior resources for fact gathering; its ability to act without awaiting an adventitious concatenation of the determined party, the right set of facts, the persuasive lawyer, and the perceptive court; its power to frame pragmatic rules departing from strict logic, and to fashion a broad new regime or to bring new facts within an existing one; its practice of changing law solely for the future in contrast to the general judicial reluctance so to proceed; and, finally, the greater assurance that a legislative solution is not likely to run counter to the popular will: all these give the legislature a position of decided advantage, if only it will use it.

Turning to the statute at hand, it is questionable whether there even exists in Title VII of the Civil Rights Act of 1964 the statutory interstice found by the majority. The statute establishes a comprehensive program designed to eliminate discrimination of the type specifically addressed. It establishes the rule of law, administrative agency enforcement, private rights of action, and specified procedures which must be followed. It can operate effectively, and indeed has operated effectively since its enactment, without a right of contribution by one defendant against another defendant. None of the compulsion that requires the courts to act, either as legislators or as interpreters, is applicable here. Although the refusal to take action is, of course, in itself action, there is a substantial difference between the affirmative action needed to make law or interpret equivocal statutory language and the action which consists merely of declining to alter the status quo.

Even if we were to apply the statutory interpretive rules used when there are, in fact, interstices, they do not lead to the implication of a right of contribution in Title VII. Congress, at the time of its enactment, was well aware that the traditional rule applicable in federal courts was that no right of contribution existed. This had been established by the Supreme Court when it said, "In the absence of legislation, courts exercising a common-law jurisdiction have generally held that they cannot on their own initiative create an enforceable right of contribution as between joint tortfeasors." Halcyon Lines v. Haenn Ship Ceiling Refitting Corp., 342 U.S. 282, 285, 72 S.Ct. 277, 279, 96 L.Ed. 318 (1951). The then prevalent view was articulated by this court when it arose, as it frequently did, in the context of a claim for contribution under the federal antitrust laws:

Since both sets of claimed torts are declared in the complaints to be actionable solely by reason of federal law there would seem to be strong justification for appellee's contention that the tort asserted to lie in the third party complaint is governed by federal common law with no right of contribution between tort feasors.

Goldlawr, Inc. v. Shubert, 276 F.2d 614, 616 (3d Cir. 1960) (footnotes omitted).

The rule of no contribution in antitrust actions has been consistently followed by the federal courts, with but one recent exception. Olson Farms v. Safeway Stores, 2 Trade Cas. (CCH) ¶ 62,995 (10th Cir. 1979); Beef Industry Antitrust Litigation v. Meat Price Investigators Association, 607 F.2d 167 (5th Cir. 1979); Wilson P. Abraham Construction v. Texas Industries, Inc., 604 F.2d 897 (5th Cir. 1979); El Camino Glass v. Sunglo Glass Co., 1 Trade Cas. (CCH) ¶ 61,533 (N.D.Cal. 1976); Sabre Shipping Corp. v. American President Lines, Ltd., 298 F. Supp. 1339 (S.D.N.Y. 1969); contra, Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d 1179 (8th Cir. 1979). See Sellers, Contribution in Antitrust Damage Actions, 24 Vill.L.Rev. 829 (1979).

I do not view the decision in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974), as in any way inconsistent with the general principle that contribution is usually to be found in a statute, if at all. In Cooper, the Court was applying the well-established maritime rule allowing contribution between joint tortfeasors. Id. at 106, 94 S.Ct. at 2174. Cooper belongs to that category of maritime and admiralty cases where the Court is free to make law or, as it did there, follow well-established precedent. In fact, the Court in Cooper cited Halcyon as reflecting the Court's disinclination to allow contribution where it might be inconsistent with the balance struck by Congress in enacting legislation. Id. at 112, 94 S.Ct. at 2177.

Congress was not unaware that, in order to provide for contribution in a claim based on a federal statute, it must make explicit provision for such in the statute itself. That is precisely what Congress did in the Securities Act of 1933, when it provided that "All or any one or more of the persons specified in subsection (a) of this section shall be jointly and severally liable, and every person who becomes liable to make any payment under this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment . . .." 15 U.S.C. § 77k(f) (1976). Provisions for contribution similar to this also appear in the Securities Exchange Act of 1934. See 15 U.S.C. §§ 78i(e), 78r(b) (1976). Whatever force there may be in the argument that the subsequent enactment of a specific statutory provision in the Securities statutes cannot shed light on Congressional intent as to the antitrust laws, enacted more than two decades earlier, it is inapplicable to Title VII which was itself enacted substantially after Congress framed the specific provisions for contribution in the Securities Laws.

The Supreme Court has recently had occasion to consider the propriety of changing a judicially created rule on which Congress may have relied when enacting legislation. In Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979), the Court was asked to impose a proportionate-fault rule in maritime law. After determining that it could not find such an intent in the Congressional statute, the Court was obliged to determine whether it should nonetheless make the change in light of "sound arguments supporting division of damages between parties before the court on the basis of their comparative fault." Id. at 271, 99 S.Ct. at 2762. It declined to do so. It was "mindful that here we deal with an interface of statutory and judge-made law", id. at 272, 99 S.Ct. at 2762-63, and concluded:

Once Congress has relied upon conditions that the courts have created, we are not as free as we would otherwise be to change them. A change in the conditions would effectively alter the statute by causing it to reach different results than Congress envisioned.

Id. at 273, 99 S.Ct. at 2763. One can assume in the absence of contrary indication, that when it enacted Title VII Congress both was aware of and relied on the established rule that contribution would not be implied in the absence of a statutory provision.

Imposition by the judiciary of a rule of contribution in Title VII cases would raise numerous administrative questions which we are ill-equipped to decide. For example, if contribution is to be implied, should it be equal contribution or should it be based on proportionate fault? Should responsibility be allocated in some fashion among intentional and unintentional joint tortfeasors, such as was formerly found in the Uniform Contribution Among Tortfeasors Act? See 129 Uniform Laws Ann. 233 (1975). Should the settling defendant be protected from liability for contribution to later sued defendants? Although the majority attempts to face some of these issues, they are on their face, hardly suitable for judicial determination in the context of a fixed statutory scheme. As Justice Brennan commented recently in another context, "To suggest the elements of such a test, however, is to expose how ill-suited a court is to define them adequately. It is Congress which has the resources and responsibility to fashion a rule . . . that comports with the objectives of the . . . Act." Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 160, 100 S.Ct. 960, 974, 63 L.Ed.2d 267 (1980) (concurring and dissenting).

In his respected and often cited article on judicial lawmaking and statutory interpretation, Justice Schaefer recognized that it is inevitable that judges should make law. However, it may have been the difficulties of balancing the equities and administrative decisions required to formulate a law of contribution that led Justice Schaefer to use contribution as an illustration of a situation in which the courts should refrain from acting in the absence of legislative command. He writes:

Two more commonplace situations may also serve as illustrations. With respect to both of them I think there would be general agreement as to the unsatisfactory quality of the existing rule. At common law there is no contribution among joint tortfeasors. When the negligence of more than one person contributes to the injury to the plaintiff, each of the guilty parties is liable for the full extent of the resulting damage, regardless of the degree to which the damage resulted from his negligence. And the plaintiff may have his choice among the defendants. One joint tortfeasor, perhaps least responsible morally and legally, but typically most responsible financially, can be called upon to satisfy the entire judgment. And, having done so, he has no right to call upon his codefendant to shoulder a part of the burden. In a few jurisdictions the problem has been met by provisions requiring contribution among joint tortfeasors. So far as I am aware, that change in the law has always been accomplished by statute. The reason, I think, is that the problem is not self-contained. It cannot be satisfactorily solved by judicial announcement of a rule requiring contribution among joint tortfeasors. To operate satisfactorily a system of comparative negligence would be necessary with resulting complication as to jury verdicts. The other common-law rule is that a judgment against two joint tortfeasors is to be regarded as a unit. If the judgment is set aside as to one defendant, it must be set aside as to all. That doctrine is obviously unsatisfactory, and courts have not hesitated to depart from it. The problem is self-contained, and the rule with respect to the joint judgment can be eliminated without affecting other areas.

Schaefer, Precedent and Policy, 34 U.Chi.L.Rev. 3, 13 (1966) (footnotes omitted) (emphasis added).

If it was clear, as my colleagues apparently believe, that a right of contribution would strengthen the deterrent impact of Title VII, then there might be a judicial responsibility to make those rules which are needed to effectuate the significant national policy represented by the statute. In that situation we would be acting in a manner consistent with our interpretation of Congressional intent, rather than legislating a rule which the majority believes is demanded by "fundamental fairness." At 252. However, I do not share the belief that contribution is required for this purpose. There is a possibility that it would have the opposite effect. It might deter settlement if a settling defendant would remain liable to nonsettling defendants for contribution, since it would preclude the most meaningful characteristic of settlement: final and complete termination of involvement in the case. See Sabre Shipping Corp. v. American President Lines, Ltd., 298 F. Supp. at 1346. On the other hand, a rule against contribution might very well encourage deterrence because potential violators would be more likely to refrain from violations if they knew that any injured party could impose the full burden of recovery on any one of them even though it played only a relatively minor part in the activity. See Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d at 1189 (dissenting opinion), quoted in Olson Farms, Inc. v. Safeway Stores, Inc., 2 Trade Cas. ¶ 62995 at 79,703.

In sum, the arguments as to the effect of a rule of contribution are inconclusive. They may cut either way. They encompass policy judgments and considerations which Congress should evaluate and adjust. While I believe my two colleagues are at least as able to perform that task as are many of the legislators, they have not been given the responsibility to do so under our constitutional allocation of powers. I agree with Judge Gibbons' comments when he argued we should refuse to create a federal common law of immunity for army surgeons: "Instead of deferring to future Congressional judgment on the creation of absolute immunity in this kind of suit, the majority has chosen to weigh the competing policy considerations and to make an essentially legislative judgment. It has done so, however, without the benefit of the interplay of the various competing interests which, by design, appropriately occurs within the legislative arena. . . ." Martinez v. Schrock, 537 F.2d 765, 775 (3d Cir. 1976) (dissenting).

Under the circumstances presented in this case, we should not engage in lawmaking as a naked exercise of power where we have neither constitutional nor statutory authority, but should leave to Congress any action which would drastically change the current rule.