dissenting:
All panel members occasionally are tempted to ignore or reject a prior decision by another panel because it is inconvenient or, worse, objectionable. However, without being lawless, we are not at liberty to do so because of the clear and uniform rule that only the en banc court may reject established circuit authority. See United *923States v. Villano, 816 F.2d 1448, 1450 (10th Cir.1987) (en banc) (en banc rehearing granted “to consider the propriety of changing [our] established rule”); Wion v. United States, 325 F.2d 420, 425 (10th Cir. 1963) (en banc) (en banc court convened “to reexamine our prevailing rule”), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964). The en banc rule is a sensible one which avoids chaos and makes possible the consistent disposition of approximately 2,000 cases per year by at least 165 different panels (a number which does not even reflect our frequent use of visiting judges).
One of those rules which has often tempted me is the so-called “local judge” rule: in the absence of direct state precedent in diversity cases, we may not overturn a local district judge’s interpretation of state law unless it is clearly erroneous. Perhaps no circuit rule is so sanctified by use and citation, the most recent being within the year. See Hauser v. Public Serv. Co., 797 F.2d 876, 878 (10th Cir.1986) (in reviewing interpretation and application of state law by resident federal district court judge in a diversity action, court of appeals is governed by the clearly erroneous standard); Weiss v. United States, 787 F.2d 518, 525 (10th Cir.1986) (clearly erroneous standard); Corbitt v. Andersen, 778 F.2d 1471, 1475 (10th Cir.1985) (some deference); Carter v. City of Salina, 773 F.2d 251, 254 (10th Cir.1985) (clearly erroneous standard of Fed.R.Civ.P. 52(a) controls); Rhody v. State Farm Mut. Ins. Co., 771 F.2d 1416, 1419 (10th Cir.1985) (great deference standard); Colonial Park Country Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th Cir.1984) (some deference standard); Taxpayers for the Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1477 (10th Cir.1984) (entitled to deference); Herndon v. Seven Bar Flying Serv., Inc., 716 F.2d 1322, 1332 (10th Cir.1983) (decisions may be overturned only where they are prejudicial and clearly erroneous), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984); King v. Horizon Corp., 701 F.2d 1313, 1315 (10th Cir.1983) (clearly erroneous standard); Guild Trust v. Union Pac. Land Resources Corp., 682 F.2d 208, 210 (10th Cir.1982) (court of appeals would follow view of district court as to what doctrine would be adopted by state supreme court); Loveridge v. Dreagoux, 678 F.2d 870, 877 (10th Cir.1982) (if federal district court has spoken on matter of state law, question is one of law and appellate review is governed by the “clearly erroneous” standard of Fed.R.Civ.P. 52(a)); Amoco Prod. Co. v. Guild Trust, 636 F.2d 261, 264 (10th Cir.1980) (views of resident district judge on matters of state law carry extraordinary force on appeal), cert. denied, 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Obieli v. Campbell Soup Co., 623 F.2d 668, 670 (10th Cir.1980) (degree of deference standard); Farmers Alliance Mut. Ins. Co. v. Bakke, 619 F.2d 885, 888 (10th Cir.1980) (extraordinary force standard); Fox v. Ford Motor Co., 575 F.2d 774, 783 (10th Cir.1978) (trial judge presumed to be in a superior position to predict whether state supreme court would follow majority or minority position); Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1148 (10th Cir.) (extraordinary force standard, citing Rule 52(a)), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir.1977) (clearly erroneous standard); Neu v. Grant, 548 F.2d 281, 287 (10th Cir.1977) (“extraordinary persuasive force” standard); Cox v. Cox, 543 F.2d 1277, 1280 (10th Cir.1976) (great weight standard); Matthews v. IMC Mint Corp., 542 F.2d 544, 546 n. 5 (10th Cir.1976) (district judge’s view persuasive and ordinarily accepted); Land v. Roper Corp., 531 F.2d 445, 448 (10th Cir.1976) (great weight standard); United States v. Hunt, 513 F.2d 129, 136 (10th Cir.1975) (extraordinary force standard); Stevens v. Barnard, 512 F.2d 876, 880 (10th Cir.1975) (“extraordinary persuasive force” standard); Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir.1975) (great weight and credence standard); United States v. Wyoming Nat’l Bank, 505 F.2d 1064, 1068 (10th Cir.1974) (most persuasive standard); Hardy Salt Co. v. Southern Pac. Transp. Co., 501 F.2d 1156, 1163 (10th Cir.) (resident district *924judge’s views are persuasive and ordinarily accepted), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974); Casper v. Neubert, 489 F.2d 543, 547 (10th Cir.1973) (resident district judge’s view persuasive and ordinarily accepted); Julander v. Ford Motor Co., 488 F.2d 839, 844 (10th Cir. 1973) (clearly erroneous standard); Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237, 239 (10th Cir.1973) (district judge’s views persuasive and ordinarily accepted); Sade v. Northern Natural Gas Co., 483 F.2d 230, 234 (10th Cir.1973) (resident district judge’s views persuasive and ordinarily accepted); Wells v. Colorado College, 478 F.2d 158, 161 (10th Cir.1973) (clearly erroneous standard); Stafos v. Jarvis, 477 F.2d 369, 373 (10th Cir.) (“extrarodinary persuasive force” standard), cert. denied, 414 U.S. 944, 94 S.Ct. 230, 38 L.Ed.2d 168 (1973); United States v. Hershberger, 475 F.2d 677, 681 (10th Cir.1973) (great weight and credence standard); Binkley v. Manufacturers Life Ins. Co., 471 F.2d 889, 891 (10th Cir.) (clearly erroneous standard), cert. denied, 414 U.S. 877, 94 S.Ct. 130, 38 L.Ed.2d 122 (1973); Sta-Rite Indus., Inc. v. Johnson, 453 F.2d 1192, 1195 (10th Cir. 1971) (clearly in error standard), cert. denied, 406 U.S. 958, 92 S.Ct. 2062, 32 L.Ed.2d 344 (1972); Brennan v. University of Kansas, 451 F.2d 1287, 1291 (10th Cir. 1971) (clearly erroneous standard); Sutton v. Anderson, Clayton & Co., 448 F.2d 293, 297 (10th Cir.1971) (clearly convinced to the contrary standard); Traders State Bank v. Continental Ins. Co., 448 F.2d 280, 282 (10th Cir.1971) (clearly erroneous standard); Hardberger & Smylie v. Employers Mut. Liab. Ins. Co., 444 F.2d 1318, 1320 (10th Cir.1971) (“extraordinary persuasive force” standard); Vaughn v. Chrysler Corp., 442 F.2d 619, 621 (10th Cir.) (knowledgeable and persuasive standard), cert. denied, 404 U.S. 857, 92 S.Ct. 106, 30 L.Ed.2d 98 (1971); Goodyear Tire & Rubber Co. v. Jones, 433 F.2d 629, 631 (10th Cir.1970) (clearly erroneous standard); Nevin v. Hoffman, 431 F.2d 43, 46 (10th Cir.1970) (clearly erroneous standard); Teague v. Grand River Dam Auth., 425 F.2d 130, 134 (10th Cir.1970) (clearly erroneous standard); Brunswick Corp. v. J &
P, Inc., 424 F.2d 100, 104 (10th Cir.1970) (clearly erroneous standard); Parsons v. Amerada Hess Corp., 422 F.2d 610, 614 (10th Cir.1970) (clearly wrong standard); Denning v. Bolin Oil Co., 422 F.2d 55, 58 (10th Cir.1970) (manifestly wrong standard); Equitable Fire & Marine Ins. Co. v. Allied Steel Constr. Co., 421 F.2d 512, 514 (10th Cir.1970) (clearly erroneous standard); Manufacturer’s Nat’l Bank v. Hartmeister, 411 F.2d 173, 176 (10th Cir. 1969) (clearly erroneous standard); Douglas-Guardian Warehouse Corp. v. Jones, 405 F.2d 427, 428 (10th Cir.1969) (not the province of court of appeals to settle uncertainties in state law); Continental Casualty Co. v. Fireman’s Fund Ins. Co., 403 F.2d 291, 336 (10th Cir.1968) (trial court’s conclusion should be accepted on appeal where there is no compelling indication of a contrary local rule); Adams v. Erickson, 394 F.2d 171, 173 (10th Cir.1968) (clearly convinced to the contrary standard); Smith v. Greyhound Lines, Inc., 382 F.2d 190, 192 (10th Cir.1967) (clearly erroneous standard); Scott v. Stocker, 380 F.2d 123, 126 (10th Cir.1967) (clearly erroneous standard); Stubblefield v. Johnson-Fagg, Inc., 379 F.2d 270, 273 (10th Cir.1967) (clearly convinced to the contrary standard); Industrial Indem. Co. v. Continental Casualty Co., 375 F.2d 183, 185 (10th Cir.1967) (clearly wrong standard); Jamaica Time Petroleum, Inc. v. Federal Ins. Co., 366 F.2d 156, 159 (10th Cir.1966) (clearly convinced to the contrary standard), cert. denied, 385 U.S. 1024, 87 S.Ct. 753, 17 L.Ed.2d 674 (1967); Pittsburgh-Des Moines Steel Co. v. American Sur. Co., 365 F.2d 412, 416 (10th Cir.1966) (where state supreme court has not considered question, court of appeals will follow decision of resident district judge); Solomon v. Downtowner of Tulsa, Inc., 357 F.2d 449, 451 (10th Cir.1966) (in absence of ruling of state court, court of appeals would accept opinion of resident federal judge); Bushman Constr. Co. v. Conner, 351 F.2d 681, 684 (10th Cir.1965) (clearly erroneous standard), cert. denied, 384 U.S. 906, 86 S.Ct. 1340, 16 L.Ed.2d 358 (1966); Bledsoe v. United States, 349 F.2d 605, 606 (10th Cir.1965) (clearly erroneous standard); First *925Nat’l Bank & Trust Co. v. Foster, 346 F.2d 49, 51 (10th Cir.1965) (clearly wrong standard); Glenn v. State Farm Mut. Auto. Ins. Co., 341 F.2d 5, 9 (10th Cir.1965) (clearly wrong standard); United States Fidelity & Guar. Co. v. Lembke, 328 F.2d 569, 572 (10th Cir.1964) (clearly convinced to the contrary); Missouri Pac. R.R. Co. v. American Refrigerator Transit Co., 328 F.2d 569, 569 (10th Cir.1964) (clearly erroneous standard); Robert Porter & Sons, Inc. v. National Distillers Prod. Co., 324 F.2d 202, 205 (10th Cir.1963) (trial judge determination accepted if it is within general authorities on point); F & S Constr. Co. v. Berube, 322 F.2d 782, 785 (10th Cir.1963) (clearly convinced to the contrary standard); Buell v. Sears, Roebuck & Co., 321 F.2d 468, 470 (10th Cir.1963) (clearly convinced to the contrary standard); Criqui v. Blaw-Knox Cory., 318 F.2d 811, 812-13 (10th Cir.1963) (clearly convinced to the contrary standard); Dallison v. Sears, Roebuck & Co., 313 F.2d 343, 347 (10th Cir.1962) (clearly convinced to the contrary standard); Hamblin v. Mountain States Tel. & Tel. Co., 271 F.2d 562, 564 n. 1 (10th Cir.1959) (“extraordinary persuasive force” standard); Cranford v. Farnsworth & Chambers Co., 261 F.2d 8, 10 (10th Cir.1958) (court of appeals would leave undisturbed state law interpretation by local resident judge); Mitton v. Granite State Fire Ins. Co., 196 F.2d 988, 992 (10th Cir.1952) (clearly erroneous standard).
The local judge rule is written for and applies only to cases, like the present, in which there is no direct state supreme court precedent regarding the matter of state law in dispute, for the rule is unnecessary when the state supreme court has already spoken and has resolved the issue. As the majority concedes, the Colorado Supreme Court has not ruled on the question of whether there is a private cause of action for employment discrimination in Colorado. Yet, using as its justification the very absence of Supreme Court precedent that requires application of a clearly erroneous standard in this circuit, the majority proceeds to make its “own independent inquiry into the proper interpretation of state law,” maj. op. at 911-912, unabashedly adopting a de novo standard of review.
The answer to the legal question given by the local district judge sitting in Colorado in this case is not reversible under a disciplined application of the clearly erroneous standard of review. I believe the majority tacitly admits as much by its elaborate avoidance of the clearly erroneous rule and its application of a de novo standard. How could we conclude otherwise when trial courts in eight cases, both state and federal, have divided equally on the issue of whether Colorado law provides a right to be compensated for wrongful discharge? See maj. op. at 911. I find it hard to believe that this court could, with a straight face, conclude that either side of this deep division among respected state and federal jurists is clearly erroneous. Sound judgment surely suggests that one side does have the better of the argument, of course, but that observation is a far cry from establishing that the other side is clearly erroneous under a logical and disciplined application of that standard of review.
I would happily join the panel in seeking the en banc abandonment of the clearly erroneous standard of review of state law issues. See Rhody, 771 F.2d at 1421 (McKay, J., concurring). This panel, however, is without power to ignore, rewrite, or reject it.1 So long as the rule governs *926circuit review in diversity cases, this panel cannot overturn the trial court’s interpretation of state law without rendering nugatory the clearly erroneous standard of review — a much greater mischief in the long run than affirming a result in this case with which the majority disagrees as a matter of first impression.
Even if we were at liberty to apply the majority’s proposed de novo review standard, I cannot agree with its analysis of what Colorado law is or will be when the Colorado Supreme Court has occasion to rule on the matter in a pre-statute case.2 My point of departure from the majority is a fundamental one, as it is rooted in our differing perspectives of what our proper judicial role should be in those diversity cases in which neither legislation nor prior judicial precedent clearly controls disposition. When the state legislature is silent or gives ambiguous messages, the majority perceives its hands to be tied; it considers itself without power to recognize a cause of action not explicitly blessed by the legislature.
This perspective is perhaps excusable, or at least understandable, given the defined and restricted role of federal courts in adjudicating causes of action under federal law. After all, there supposedly is no “federal general common law.” Erie R.R. Co. v. Tompkins, 804 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). We are taught that either Congress or the Constitution, see Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), creates all federal actions. We become accustomed to continually looking to the legislature for signs and clues as to the existence of and extent of the federal rights it establishes. When Congress appears to create a right without a remedy, we proceed to analyze under the principles of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), whether Congress impliedly fashioned a remedy, for we have no independent power to invent a federal cause of action. We must always look elsewhere.
This ingrained habit of envisaging all causes of action as emanating solely from either the legislature or the Constitution can easily skew the analysis in a diversity case. The majority in this case, borrowing heavily from federal principles and specifically citing Cort v. Ash, see maj. op. at 914-922, fell victim to this constraining habit of looking solely to statutory law in deciding whether Mr. Rawson has a cause of action in Colorado.
In a diversity case, however, our role is radically different, for there we have the privilege of sitting as a common-law court. That Colorado courts are common-law courts is beyond dispute. See e.g., People v. Montgomery, 669 P.2d 1387, 1390 (Colo. 1983) (en banc) (recognizing discretionary sentencing power of courts as “derived from the common law”). The first task of a common-law court, of course, is to carry out, or abide by the restraints imposed by, the will of the legislature unless that will be prohibited by either the state or the federal constitution. Its second task is to fill in the interstices left by legislative enactments that are either general in nature or ambiguously express the legislative will. Its duties do not end there, however. Its *927further task, which is grounded in conservative doctrine antedating the founding of the State of Colorado and even the nation, is to expand and contract causes of action, particularly those sounding essentially in tort, as wisdom and experience dictate. That function is, indeed, the majesty of the common law. Tort law itself was born and evolved not in legislative enactment but by this common-law method so fully accepted as a part of the traditional function of common-law courts. “Perhaps more than any other branch of the law, the law of torts is a battleground of social theory.” W. Prosser, Handbook of the Law of Torts § 3 at 14-15 (4th ed. 1971).
The most common source of support for either the evolution of existing causes of action or for the first recognition of what is sometimes called a new cause of action is public policy. Awards for pain and suffering and punitive damages are venerable examples of judicially evolved recoveries. The soundest and most conservative source traditionally tapped by courts when discerning public policy within the context of evolving tort actions has been legislative declarations that certain conduct is criminal.
Criminal cases may be useful as guides to the type of conduct which the law will condemn or excuse, and the existence of a criminal statute may indicate a legislative policy which the courts mil further by creating tort liability.
[T]he courts are seeking, by something in the nature of judicial legislation, to further the ultimate policy for the protection of individuals which they find underlying the statute, and which they believe the legislature must have had in mind.
Id. at § 2 at 9, § 36 at 191 (emphasis added). Thus directed by the clearest of all public policy guideposts, the courts need only award properly measured compensation to the victims of breaches of such unequivocally declared public policies.
Indeed, even the oft-used argument that the legislature would have explicitly created a private cause of action for breach of a criminal statute if it so intended is itself a common-law creation of the courts. It ought to be applied sparingly, if at all, because it turns the traditional presumption of the common law — that injuries occasioned by a known wrong are compensable — on its head. Common-law courts have not hesitated to be creative in defining causes of actions whenever a well-litigated case makes clear that the new action carries out the basic tenet of awarding just compensation to the victim of a wrong.3 Nor have they hesitated in abandoning or reformulating dated concepts when their obsolescence is made plain. See, e.g., O’Connor v. Boulder Colorado Sanitarium Ass’n, 105 Colo. 259, 96 P.2d 835 (1939) (en banc) (charitable immunity does not bar tort action, merely prevents levy against charitable trust).
To its credit, the Colorado legislature in 1903 early recognized, by making such conduct criminal, that public policy clearly condemns the injury of an employee by unwarranted discriminatory discharge. Although the Colorado Supreme Court has not to date acknowledged the right of recovery for such injury, neither has it denied the right; it simply has not ruled on the issue. We can and must safely assume that the delay, in the grandest traditions of all common-law courts, is due to the absence of a well presented and soundly argued case, rather than indicative of some invented implication that no such right of recompense lies under existing principles.
In my view, the Colorado Supreme Court will be more likely, now that a solid body of proper cases awaits appellate review, to include this cause of action among its cousins rather than invent some notion that the legislature intended by its silence to affirmatively prohibit the traditional exercise of *928the judicial function of fashioning sound remedies for known wrongs. It would be difficult for a common-law court to resist at this late date the recognition of the action, especially if it tried to resist by espousing its own invented rule regarding legislative action by silence.
The fact that the legislature has entered the field since these causes of actions arose and tailored a different kind of remedy for the future has no reasonable implication for these injuries of the past. As the courts are so fond of saying, the legislature is well aware of the common-law process and function and, had it intended to limit this classic common-law function by retrospective application of the new statute, it would have said so.
The trial court in this case has developed a more-than-adequate record to show that this plaintiff has been wronged in violation of both general and legislatively declared public policy. The application of ancient and well respected rules of decision mandates that its judgment and that of its fact-finding common-law jury be affirmed.
Finally, even if I were to restrict myself to a statutory analysis in this case, I am persuaded that the district court’s extensive and specific analysis of Colorado law with respect to express and implied statutory rights of action is correct. See Rawson v. Sears, Roebuck & Co., 530 F.Supp. 776 (D.Colo.1982); Rawson v. Sears, Roebuck & Co., 585 F.Supp. 1393 (D.Colo.1984).
In view of this court’s rejection of the basic cause of action, I need not reach the other issues raised by Mr. Rawson in his briefs and arguments. Had we recognized the right of recompense, we might have then examined whether the evidence supported the full amount of the award in this case. That examination might well have been disciplined by the subsequent legislative enactment. It is clear that the legislature, even with hindsight, did not reject the idea that a claim of discriminatory discharge based on age could be heard outside the criminal context; it merely tailored and disciplined the application of the idea. With that in mind, we likely would have strictly scrutinized whether the plaintiff’s evidence fully sustained the damages awarded.
. The majority’s citation of Catts Co. v. Gulf Insurance Co., 723 F.2d 1494, 1503-04 (10th Cir.1983) (McKay, J., dissenting) for the proposition that "deference is inappropriate where local district judges differ," maj. op. at 912 n. 7, is inapposite. In that dissent, I urged only that our own prior appellate precedent regarding the interpretation of Oklahoma law controlled rather than the district judge’s contrary analysis in that case. No conflict among federal district courts existed in Oklahoma with respect to the issue in question, and the Oklahoma courts had not addressed the subject. My dissent stood for the unremarkable proposition that we should abide by our own Tenth Circuit precedent under principles of stare decisis in the absence of subsequent Oklahoma authority.
The quotation excised from my footnote in Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1384 n. 2 (10th Cir.1985), see maj. op. at 911, while concededly accurate, was notably selective. As a full reading of the footnote makes *926clear, the district court’s opinion regarding the state law issue in that case was merely dicta and was therefore not controlling on appeal. The note’s additional reference to the conflict with another district judge would not have been sufficient alone to justify deviation from our embedded rule.
Of course, the absurdity of deferring in separate cases to irreconcilable interpretations of the same state law issue is obvious, as my concurrence in Rhody, 771 F.2d at 1421, discusses at some length. My implied reference to this absurdity in Maughan is indicative of the temptation to which I alluded at the beginning of this opinion. My dicta in Maughan presaged the fuller development of that concern in Rhody and my supplication for en banc reconsideration of the local judge rule herein. However, Maughan is not authority for deviating from the local judge rule when the district court’s interpretation is not merely dicta but the basis upon which the holding rests. Admittedly, seeds were planted in Maughan, but only en banc action can harvest them.
. As the majority notes, the Colorado legislature has settled the matter for all future cases by placing complaints for discriminatory discharge based on age within the purview of the Colorado Civil Rights Commission. See Colo.Rev.Stat. §§ 24-34-401 to 406 (1982 & Supp.1986).
. Unlike the majority, I perceive no significance in Mr. Rawson’s failure to appeal the dismissal of several common-law causes of action. See maj. op. at 909 n. 1. Mr. Rawson was the eventual victor, and his decision not to appeal the dismissal of his alternative grounds for victory only makes sound economic sense to me. Such failure does not reflect either positively or negatively on whether the Colorado Supreme Court would recognize this cause of action.