Estoppel

The law has a variety of tools to deal with troublesome litigants.

In law, estoppel is a doctrine under which the court keeps you from doing something you could normally have done, in order to achieve an equitable result. In law, "equity" means "fairness," and for those who believe that anything that government does is fair, it really means that some loophole in the law is so transparently open to being gamed that a judge has to contrive to plug it.

The rules of baseball contain comparable estoppels to drain the profit out of dropping the baseball on purpose. Continuing the sports analogy, estoppel is like the cases of unsportsmanlike conduct that do not result in an immediate forfeit but merely in throwing the offending player out of the game.

Etymology

Estoppel comes to us from the French estoupail, which is a stopper one might use to plug a drain. In the old French courts, before labor-saving devices such as the guillotine came into frequent use, the estoupail was used liberally. For example, passing gas on the witness stand did not result in an immediate verdict against the witness's side; rather, le bailiff simply brought out l'estoupail.

It was the famous Lord Diet Coke who stated, "It is called an estoppel because a man's own act stoppeth or closeth up his mouth." Hast thou any questions? Lord Diet Coke was a great legal mind but was a bit bass-ackward at anatomy.

Overview

Estoppel is based on the doctrine of penes utrumque modum non debet, or "This dope is trying to have it both ways." This in turn derives from the fundamental rule of civilized society that, when someone is being a dick, wiser minds must fetch the stopcock.

In 2001, New Hampshire argued before the U.S. Supreme Court that a Navy base on an island was on its side of the river rather than in Maine, which was taxing the workers. Maine's lawyer was a smarty pants who pointed out that New Hampshire had humped the opposite leg in 1977 when arguing that Maine should clean up the river. New Hampshire's lawyers were required to argue Maine's side for it, and the one Justice who came from New Hampshire was required, for the remainder of oral arguments, to choose between wearing a powdered wig or a dunce cap. His decision is lost to history, as the Court does not permit cameras in camera.

Examples

Estoppel can be understood by considering examples such as the following:

1. A landlord tells the tenant the rent will not be going up, and the tenant decides to stay, and even sells the double-wide he was going to move into. Guess what happens next; if you said the rent stays the same, guess again. If the tenant finds an anti-business judge, the judge will not automatically rule that the rent must not rise. He will merely estop the landlord from arguing that it must. Both litigants can whistle or look at one another's shoes until a plucky lawyer proposes a friendly settlement on which he keeps one-third.
2. A car salesman assures the buyer that he will not be added to a giant junk-mail list. When the buyer drives his car home to find there are already five sales pitches on the answering machine, and mailings begin soon after, the buyer sues to estop the annoying esselling. Unfortunately, as court records are public documents, the buyer now gets pitches for debt relief, credit counseling, and male enhancement products over the internet.
3. Radio Shack has a transistor radio in the window for $10. You turn a quick trick for $10. (You feel you are worth $15, but thought you only needed $10.) When you get back to the store, the price is now $11. Is the store manager estopped by conduct? The Second Restatement of Contracts, §90, declares this an injustice, though as for what compensation you are owed, it says, "The remedy granted may be limited as justice requires." It is reassuring to be told they will get the call right even if you are not told what happens next. And you would never pay a lawyer $200 per hour to tell you that nobody knows.

The reader can see that, even when two parties have signed a contract, estoppel is a marvelous way for the Party of Either Part to wriggle out of it by claiming he would never have signed it if he had simply known better. It is "inequitable" to hold him to what he signed his name to. No judge will state this outright — as even judges have integrity, though naming examples is outside the scope of this article — but some will use estoppel to write new terms on a whim.

This in turn has led to the large body of class-action lawsuits against corporations that claim that no stockholder would have paid full price for the stock if he were simply able to see the future. Estoppel sounds like a scholarly way to achieve a fair result — namely, a good deal rather than the real deal. "Shakedown" would sound comparatively crude.

Promising potential

Speaker Boehner would finally be forced to learn a useful new trade if he were not allowed to speak out of both sides of his mouth.

The reader can imagine the promising uses to which estoppel could be put. Dozens of professions would be improved by rules against dopes trying to have it both ways. If it were applied more consistently to new-car sales, a crossover vehicle could not claim to have "available" turbocharger and "available" Dolby® four-channel stereo, if the vehicle does not have enough power to climb a small hill at all when the radio is on. If you pay for ten extra-cost options, estoppel would mean they would all work, and might all work together.

And the smiling young dealer who promises you a great deal would not be at the mercy of his hard-ass Sales Manager who points out that you don't qualify for the offer, as you are not a returning military veteran and a college freshman and have a perfect credit score.

Moving to the political arena, estoppel could be put right into the U.S. Constitution so that Congressmen and the President could not have it both ways. In 2012, when Obamacare was on trial, Barack Obama took Chief Justice John Roberts aside and argued that —

1. It would be unfair for "nine old men" in black robes to set aside an election, though 70 million Americans tried their damnedest in that year's midterms,
2. The whole thing would be legal if we decided, despite what the President had been saying for years, and despite the bill not starting in the House of Representatives, it really was a giant new tax, and
3. We have photographs of you that you wouldn't want to see published.

An Estoppel Amendment would have emboldened Roberts to tell the President, "No Can Do, sir. You can't have it both ways." This would have taken out reason #2 for flipping to the Obama side. But who took those pictures?