GINSBURG, J., dissenting In Key Tronic Corp. v. United States, 511 U. S. 809, 818 (1994), all Members of this Court agreed that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. S. C. § 9607, “unquestionably provides a cause of action for [potentially responsible persons (PRPs)] to seek recovery of cleanup costs." The Court rested that determination squarely and solely on § 107(a)(4)(B), which allows any person who has incurred costs for cleaning up a hazardous waste site to recover all or a portion of those costs from any other person liable under CERCLA.1 The Key Tronic Court divided, however, on the question whether the right to contribution is implicit in § 107(a)'s text, as the majority determined, or whether § 107(a) expressly confers the right, as the dissenters urged. The majority stated: Section 107 "implies-but does not expressly command that [a PRP] may have a claim for contribution against those treated as joint tortfeasors." 511 U. S., at 818, and n. 11 (emphasis added). The dissent maintained: "Section 107(a)(4)(B) states, as clearly as can be, that '[c]overed persons. shall be liable for . . . necessary costs of response incurred by any other person.' Surely to say that A shall be liable to B is the express creation of a right of action.' Id., at 822. But no Justice expressed the slightest doubt that § 107 indeed did enable a PRP to sue other covered persons for reimbursement, in whole or part, of cleanup costs the PRP legitimately incurred. 1 1 Key Tronic, a PRP, asserted a cost-recovery claim under § 107(a) to recoup approximately $1.2 million in costs that it allegedly incurred cleaning up its site "at its own initiative." Key Tronic Corp. v. United States, 984 F. 2d 1025, 1026 (CA9 1993). Although Key Tronic settled a portion of its liability with the Environmental Protection Agency (EPA), the claim advanced in Key Tronic's § 107(a) suit rested on remedial action taken before the EPA's involvement, remediation that did not figure in the settlement. Id., at 1026-1027; Key Tronic Corp. v. United States, 511 U. S. 809, 811-812 (1994). GINSBURG, J., dissenting In its original complaint, Aviall identified § 107 as the federal-law basis for an independent cost-recovery claim against Cooper, and § 113 as the basis for a contribution claim. App. 8A, 16A-17A. In amended pleadings, Aviall alleged both §§ 107 and 113 as the federal underpinning for its contribution claim. Id., at 27A, 48A. Aviall's use of §§ 113 and 107 in tandem to assert a contribution claim conformed its pleading to then-governing Fifth Circuit precedent, which held that a CERCLA contribution action arises through the joint operation of §§ 107(a) and 113(f)(1). See Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924 (2000) (“[W]hile section 113(f) is the vehicle for bringing a contribution action, it does not create a new cause of action or create any new liabilities. Rather, it is a mechanism for apportioning costs that are recoverable under section 107." (footnote omitted)). A party obliged by circuit precedent to plead in a certain way can hardly be deemed to have waived a plea the party could have maintained had the law of the circuit permitted him to do so. But cf. ante, at 168-169. In the Fifth Circuit's view, § 107 supplied the right of action for Aviall's claim, and § 113(f)(1) prescribed the procedural framework. 312 F. 3d 677, 683, and n. 10 (2002) (en banc) (stating that § 107 "impliedly authorizes a cause of action for contribution" and § 113(f) "govern[s] and regulate[s]" the action (citing Geraghty & Miller, 234 F. 3d, at 924; internal quotation marks omitted)); see § 113(f)(1) (calling for the governance of "Federal law" and the application of "the Federal Rules of Civil Procedure," and specifying that "[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate"). Notably, Aviall expressly urged in the Court of Appeals that, were the court to conclude that § 113(f)(1)'s "during or following" language excluded application of that section to this case, Aviall's suit should be adjudicated independently under § 107(a). See Response of Appellant Aviall Services, Inc., to the Amicus GINSBURG, J., dissenting Curiae Brief for United States in No. 00-10197 (CA5), p. 24 ("[P]arties who are excluded from seeking contribution under section 113(f)(1) must therefore have available to them the broader right of cost recovery [covering both full recovery and contribution] under section 107(a)."); cf. Key Tronic, 511 U. S., at 816 ("[T]he statute now expressly authorizes a cause of action for contribution in § 113 and impliedly authorizes a similar and somewhat overlapping remedy in § 107."). I see no cause for protracting this litigation by requiring the Fifth Circuit to revisit a determination it has essentially made already: Federal courts, prior to the enactment of § 113(f)(1), had correctly held that PRPs could "recover [under § 107] a proportionate share of their costs in actions for contribution against other PRPs," 312 F. 3d, at 687;2 nothing in §113 retracts that right, ibid. (noting that § 113(f)'s saving clause preserves all preexisting state and federal rights of action for contribution, including the § 107 implied right this Court recognized in Key Tronic, 511 U. S., at 816). Accordingly, I would not defer a definitive ruling by this Court on the question whether Aviall may pursue a § 107 claim for relief against Cooper. 2 The cases to which the Court refers, ante, at 171, Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981), and Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981), do not address the implication of a right of action for contribution under CERCLA. Texas Industries concerned the Sherman and Clayton Acts, 451 U. S., at 639–646; Northwest Airlines, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, 451 U. S., at 90-99. A determination suitable in one statutory context does not necessarily carry over to a different statutory setting. Syllabus FLORIDA v. NIXON CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 03-931. Argued November 2, 2004-Decided December 13, 2004 Respondent Nixon was arrested for a brutal murder. Questioned by the police, Nixon described in graphic detail how he had kidnaped and killed his victim. After gathering overwhelming evidence of his guilt, the State indicted Nixon for first-degree murder and related crimes. Assistant public defender Corin, assigned to represent Nixon, filed a plea of not guilty and deposed all of the State's potential witnesses. Satisfied that Nixon's guilt was not subject to reasonable dispute, Corin commenced plea negotiations, but the prosecutors refused to recommend a sentence other than death. Faced with the inevitability of going to trial on a capital charge, and a strong case for the prosecution, Corin concluded that his best course would be to concede Nixon's guilt, thereby preserving credibility for penalty-phase evidence of Nixon's mental instability, and for defense pleas to spare Nixon's life. Corin several times attempted to explain this strategy to Nixon, but Nixon remained unresponsive, never verbally approving or protesting the proposed strategy. Overall, Nixon gave Corin very little, if any, assistance or direction in preparing the case. When trial began, Nixon engaged in disruptive behavior and absented himself from most of the proceedings. In his opening statement, Corin acknowledged Nixon's guilt and urged the jury to focus on the penalty phase. During the State's case in chief, Corin objected to the introduction of crime scene photographs as unduly prejudicial, cross-examined witnesses for clarification, and contested several aspects of the jury instructions. In his closing argument, Corin again conceded Nixon's guilt, declaring that he hoped to persuade the jury during the penalty phase that Nixon should not be sentenced to death. The jury found Nixon guilty on all counts. At the penalty phase, Corin argued to the jury that Nixon was not "an intact human being" and had committed the murder while afflicted with multiple mental disabilities. Corin called as witnesses relatives and friends who described Nixon's childhood emotional troubles and his erratic behavior preceding the murder. Corin also presented expert testimony concerning Nixon's antisocial personality, history of emotional instability and psychiatric care, low IQ, and possible brain damage. In his closing argument, Corin emphasized Nixon's youth, the psychiatric evidence, and the jury's discretion to consider any mitigating circumstances; urged that, if not sentenced to Syllabus death, Nixon would never be released; maintained that the death penalty was not appropriate for a person with Nixon's impairments; and asked the jury to spare Nixon's life. The jury recommended, and the trial court imposed, the death penalty. The Florida Supreme Court ultimately reversed, holding that a defense attorney's concession that his client committed murder, made without the defendant's express consent, automatically ranks as prejudicial ineffective assistance of counsel necessitating a new trial under the standard announced in United States v. Cronic, 466 U. S. 648. Corin's concession, according to that court, was the functional equivalent of a guilty plea in that it allowed the prosecution's guilt-phase case to proceed essentially without opposition. Under Boykin v. Alabama, 395 U. S. 238, 242-243, consent to a guilty plea cannot be inferred from silence; similarly, the Florida court stated, a concession of guilt at trial requires a defendant's affirmative, explicit acceptance, without which counsel's performance is presumably inadequate. While acknowledging that Nixon was very disruptive and uncooperative at trial and that Corin's strategy may have been in Nixon's best interest, the court nevertheless declared that silent acquiescence is not enough: Counsel conceding a defendant's guilt is inevitably ineffective if the defendant does not expressly approve counsel's course. Held: Counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial does not automatically render counsel's performance deficient. Pp. 187–193. (a) The Florida Supreme Court erred in requiring Nixon's affirmative, explicit acceptance of Corin's strategy because it mistakenly deemed Corin's statements to the jury the functional equivalent of a guilty plea. Despite Corin's concession of Nixon's guilt, Nixon retained the rights accorded a defendant in a criminal trial. Cf. 395 U. S., at 242-243, and n. 4. The State was obliged to present during the guilt phase competent, admissible evidence establishing the essential elements of the crimes with which Nixon was charged. That aggressive evidence would thus be separated from the penalty phase, enabling the defense to concentrate that portion of the trial on mitigating factors. Further, the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor, as Corin did, to exclude prejudicial evidence. Futhermore, in the event of errors in the trial or jury instructions, a concession of guilt would not hinder the defendant's right to appeal. Corin was obliged to, and in fact several times did, explain his proposed trial strategy to Nixon. Nixon's characteristic silence each time information was conveyed to him did not suffice to render unreasonable Cor |