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Whitacre Partnership v. Biosignia2/6/2004
iling in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.'" Id. at 749, 149 L.Ed. 2d at 977 (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 147 L.Ed. 2d 164, 180 n.8 (2000)).
It is important to note that Davis v. Wakelee, cited in New Hampshire v. Maine as a statement of the law of judicial estoppel, never mentions the doctrine by name. Rather, Davis v. Wakelee states the rule as a "general principle" and cites two distinct lines of cases expounding the doctrine of equitable estoppel and the related doctrine of "mend the hold." 156 U.S. at 689-92, 39 L.Ed. at 584-85. We believe Davis v. Wakelee is properly understood as an early, prototypical formulation of judicial estoppel, one that implicitly derives a new species of estoppel from earlier strands of doctrine.
The first case cited in Davis v. Wakelee in support of the rule quoted above is Philadelphia, Wilmington & Baltimore Co. R.R. v. Howard, 54 U.S. 307, 14 L.Ed. 157 (1852). In Howard, the United States Supreme Court held that a corporation was estopped to deny that a written instrument was intended to be a deed of the corporation where the corporation had earlier treated the instrument as bearing the corporate seal, thereby inducing the plaintiff to bring an action upon the instrument, and had prevailed at the earlier trial by asserting that the paper was a valid deed. Id. at 336, 14 L.Ed. at 169-70. The Court stated that these facts brought the case "within the principle of common law, that when a party asserts what he knows is false, or does not know to be true, to another's loss, and to his own gain, he is guilty of a fraud; a fraud in fact, if he knows it to be false, a fraud in law, if he does not know it to be true." Id. at 336, 14 L.Ed. at 170. The Court concluded, "It does not carry the estoppel beyond what is strictly equitable, to hold that the representation which defeated one action on a point of form should sustain another on a like point." Id. at 337, 14 L.Ed. at 170. A fair reading of Howard suggests that the Court applied a species of equitable estoppel, albeit in a form close to judicial estoppel. The Court's emphasis on the plaintiff having been "induced" by defendant's representations to bring an action and on plaintiff's resulting "loss" calls to mind the doctrine of equitable estoppel, which requires a showing of detrimental reliance on the part of the party asserting the estoppel. See Stoody Co. v. Mills Alloys, Inc., 67 F.2d 807, 811 (9th Cir. 1933) (noting that an essential aspect of Howard was the fact that the "defense in the first suit was of a character to induce the plaintiff to change his ground of action"), cert. denied, 292 U.S. 637, 78 L.Ed. 1489 (1934). The Court also appeared willing, however, to extend the concept of estoppel beyond the relatively strict parameters of estoppel in pais. Howard, 54 U.S. at 337, 14 L.Ed. at 170 ("It does not carry the estoppel beyond what is strictly equitable, to hold that the representation which defeated one action on a point of form should sustain another on a like point."). Moreover, the Court's reasoning that a party should not be permitted to commit a "fraud" upon the court, id., evokes the central purpose of judicial estoppel: to protect the integrity of the judicial process. New Hampshire, 532 U.S. at 749, 149 L.Ed. 2d at 977. Thus, Howard appears to occupy a gray area between equitable and judicial estoppel, perhaps marking the emergence of the latter doctrine in the United States Supreme Court's jurisprudence. Cf. Solum, 32 Loy. L.A. L. Rev. at 461 n.2 (describing the rule stated in Howard as a "principle of law akin to judicial estoppel" that operates as both a rule of evidence and an equitable defen
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