Reassessing the Doctrine of Judicial Estoppel: The Implications of the Judicial Integrity Rationale

When a party “assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” This doctrine is most often termed “judicial estoppel,” but it may also be called “fact preclusion,” “judicial preclusion,” or “estoppel in pais.” Judicial estoppel is an equitable, court-created, discretionary doctrine that may be invoked by either a party or the court sua sponte. Very simply stated, the doctrine prevents a party from taking a position contradictory to a position which that party adopted previously.

The most difficult questions of judicial estoppel tend to arise when a party asserts an inconsistent claim in two different proceedings, since judicial estoppel “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” For estoppel to be considered in a second proceeding, the first proceeding need not have been a complete case; rather, it may have taken a variety of forms—from a complete court case, to a pleading, to a sworn statement made to an administrative agency. And questions of judicial estoppel arise in a variety of different factual scenarios, from boundary disputes to bankruptcy cases.

Despite enjoying recognition for over one hundred and fifty years in some state courts and over one hundred years in the U.S. Supreme Court, the doctrine of judicial estoppel has never taken one settled form. In the nearly fifteen years since New Hampshire v. Maine—the Court’s seminal modern case on judicial estoppel—was handed down, various federal courts of appeals have changed their approaches to the federal doctrine of judicial estoppel, but no uniform approach has emerged. Different federal courts continue to emphasize different factors and rationales relevant to judicial estoppel when applying their own federal common law approaches to judicial estoppel. At the same time, there continues to be a circuit split over whether the Supreme Court’s decision in Erie Railroad Co. v. Tompkins requires federal courts to apply state law of judicial estoppel in some cases.

Little to no literature exists on the development of federal judicial estoppel—especially in relation to the Erie doctrine—since New Hampshire v. Maine. This Note attempts to fill that gap. Part I of this Note will lay out the background law of judicial estoppel. It will first outline the Supreme Court’s decision in New Hampshire v. Maine and then sketch the ways in which the courts of appeals have emphasized different elements of judicial estoppel when applying their own variations on the doctrine. It also will discuss the various rationales underlying different federal approaches to judicial estoppel.

Part II will begin with an explanation of the split among the courts of appeals over what form of judicial estoppel applies in particular scenarios under the Erie doctrine. The bulk of this Part will outline and defend the proposed rule: that judicial estoppel should be categorized as substantive for the sake of the Erie doctrine, and that a federal court considering the application of judicial estoppel in any case should apply the judicial estoppel doctrine that would be applied by the court that adjudicated the first proceeding. Part III will provide a cursory outline of state approaches to choice-of-law questions that states are faced with when applying judicial estoppel. This Part will also discuss the possible application of Semtek International Inc. v. Lockheed Martin Corp. to the doctrine of judicial estoppel and propose a state approach to choice-of-law questions that arise when states consider judicial estoppel; this proposed state rule mirrors the proposed federal rule under the Erie doctrine.