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Thanks. I'm familiar with the distinction between common and civil law, but that does not seem sufficiently specific to my question to be very helpful. The lin

Thanks. I'm familiar with the distinction between common and civil law, but that does not seem sufficiently specific to my question to be very helpful. The link to judicial estoppel is helpful, but seems much less broad than the gamblor956's claim. Judicial estoppel involves a party presenting contradictory arguments in separate court cases, not just hypocritical behavior by the party. (gamblor956: "if you take a position in federal court on X... and you are found to be doing not-X in an analogous situation...").

gamblor956 6y ago
Judicial estoppel is a lot broader than the 3 paragraph Wikipedia page. It applies to the same court case, to separate court cases, and to actions occurring outside of a courtroom that would affect a court case if such actions have the effect of contradicting a legal position a party is taking in court.
- jerf 6y ago
  Yes; I was answering the "give me a google term" question (which is a good question I fully support; it sure as heck isn't obvious the answer is "estoppel" to an English speaker), not "here's a full explanation of the concept" not-asked question. I'm not competent to give the latter. Further edit: I was also showing this is a principle in common law. It seems to be pretty rare for a case to be resolved with an explicit resolution that cites the basic principle, and for every principle you can find any number of places where it seems to be violated. Instead, these general principles are just ambiently in the air at all times, so to speak. I wouldn't expect the court to explicitly rule "case dismissed because of judicial estoppel"; I would expect it is something that factors in to the general environment of the trial, rarely in the foreground but constantly in the background. You are going in with a weaker position arguing that entity X shouldn't be doing Y if you are yourself doing Y in a manner that a reasonable person would find comparable.
  - jessriedel 6y ago
    I do appreciate it. Your comment definitely advanced the discussion.
- thaumasiotes 6y ago
  But so far, you haven't advanced any theory of how Apple's behavior here ("we use external payment in Google's app store") contradicts any legal position that Apple is taking in any court case. You can't be claiming that Apple takes the legal position that external payment handling is illegal in all app stores?
  - e12e 6y ago
    Apple makes eg: Google music use Apple pay in Apple ios store, taking 30% cut. Apple will kick out Google music from app store for not using Apple pay, giving Apple 30% cut. Apple circumvents Google pay, and Google 30% cut in Android app store. Apple thus admits by own action that Apple's enforcement of apple pay and 30% cut is fine for anyone to circumvent, because they do the equivalent thing themselves. And they should not be allowed to kick anyone out of the ios app store for circumventing Apple pay? Apologies if I misunderstood your question, but that was my takeaway from this thread?
    - thaumasiotes 6y ago
      This is so much nonsense. Apple circumvents Google pay pursuant to Google's policies. Apple has different policies in its own app store. So what? Those are not related facts.
      - e12e 6y ago
        If there is a case testing the enforcability/validity of the limits enforced by the app store, it might be? I'm not certain if the app store model has been tested in court? As in - can you actually, legally build a walled garden?
- snowwrestler 6y ago
  Sure, but it's not as broad as hypocrisy in general. Hypocrisy is not against the law. Apple is clearly being hypocritical by trying to do to Google what they try to stop other companies from doing to them. But that is a basic sort of hypocrisy common to markets--e.g. I want to get paid a lot for my work but I don't want to pay someone else a lot to do work for me. If you look at any contractual relationship--which is what app stores are--you can be sure that each party is trying to get the most and give the least. That's not judicial estoppel.
- jessriedel 6y ago
  But even when I look at other sources that emphasize how broad it is, they do not seem to think it applies to general hypocritical behavior. First, it seems restricted to statements (arguments, testimony, etc.). Second, those statements seem to need to relate to communication where there is a notion of "taking a public stand", e.g., your account of an event to your insurance company, or your explanation to a government auditor. > Courts have held, for example, that the timing of the inconsistent statements is not necessarily determinative. Therefore, both statements need not have been made during the course of the same pending lawsuit. Nor is it absolutely necessary for both statements to have been made in court proceedings. For example, prior statements made to local, state, and federal agencies, or to insurance companies, if sufficiently inconsistent with a later position being taken before a court, can give rise to a judicial estoppel. https://www.lexology.com/library/detail.aspx?g=a2c93368-28d7-4c7a-bdbe-725d9ee380ee https://www.lexology.com/library/detail.aspx?g=a2c93368-28d7... From everything I've read, just behaving hypocritically is not enough.
- Gorbzel 6y ago
  Come oooonnnnnn... Obligatory disclaimer for everyone else: IANYL. Mostly, because armchair lawyering on the internet is the worst. That said – sure, estoppel is absolutely an important part of the judicial/common law canon. It's also often a last ditch effort when multiple other theories of the case fall through. In fact, before estoppel was mentioned, I thought OP was going for unclean hands, which might be truly the last hail Mary, and absent much more, estoppel is equally far down that list. Not sure which is worse: Dunning-Kruger here or if OP is actually in a position where (s)he should know better. All the Wikipedia and common law cites make me thing maybe a foreign attorney best case scenario. tl;dr: Extremely broad but rarely used as such legal principle is cited as reason Apple is legally DOOMED! From that misleading jumping off point, OP gleefully takes the giant leap to asserting that an otherwise novel and highly disputed antitrust case involving the App Store et al. is open and shut when it very much isn't.

gamblor956 6y ago

Judicial estoppel is a lot broader than the 3 paragraph Wikipedia page. It applies to the same court case, to separate court cases, and to actions occurring outside of a courtroom that would affect a court case if such actions have the effect of contradicting a legal position a party is taking in court.

jerf 6y ago
Yes; I was answering the "give me a google term" question (which is a good question I fully support; it sure as heck isn't obvious the answer is "estoppel" to an English speaker), not "here's a full explanation of the concept" not-asked question. I'm not competent to give the latter. Further edit: I was also showing this is a principle in common law. It seems to be pretty rare for a case to be resolved with an explicit resolution that cites the basic principle, and for every principle you can find any number of places where it seems to be violated. Instead, these general principles are just ambiently in the air at all times, so to speak. I wouldn't expect the court to explicitly rule "case dismissed because of judicial estoppel"; I would expect it is something that factors in to the general environment of the trial, rarely in the foreground but constantly in the background. You are going in with a weaker position arguing that entity X shouldn't be doing Y if you are yourself doing Y in a manner that a reasonable person would find comparable.
- jessriedel 6y ago
  I do appreciate it. Your comment definitely advanced the discussion.
thaumasiotes 6y ago
But so far, you haven't advanced any theory of how Apple's behavior here ("we use external payment in Google's app store") contradicts any legal position that Apple is taking in any court case. You can't be claiming that Apple takes the legal position that external payment handling is illegal in all app stores?
- e12e 6y ago
  Apple makes eg: Google music use Apple pay in Apple ios store, taking 30% cut. Apple will kick out Google music from app store for not using Apple pay, giving Apple 30% cut. Apple circumvents Google pay, and Google 30% cut in Android app store. Apple thus admits by own action that Apple's enforcement of apple pay and 30% cut is fine for anyone to circumvent, because they do the equivalent thing themselves. And they should not be allowed to kick anyone out of the ios app store for circumventing Apple pay? Apologies if I misunderstood your question, but that was my takeaway from this thread?
  - thaumasiotes 6y ago
    This is so much nonsense. Apple circumvents Google pay pursuant to Google's policies. Apple has different policies in its own app store. So what? Those are not related facts.
    - e12e 6y ago
      If there is a case testing the enforcability/validity of the limits enforced by the app store, it might be? I'm not certain if the app store model has been tested in court? As in - can you actually, legally build a walled garden?
snowwrestler 6y ago
Sure, but it's not as broad as hypocrisy in general. Hypocrisy is not against the law. Apple is clearly being hypocritical by trying to do to Google what they try to stop other companies from doing to them. But that is a basic sort of hypocrisy common to markets--e.g. I want to get paid a lot for my work but I don't want to pay someone else a lot to do work for me. If you look at any contractual relationship--which is what app stores are--you can be sure that each party is trying to get the most and give the least. That's not judicial estoppel.
jessriedel 6y ago
But even when I look at other sources that emphasize how broad it is, they do not seem to think it applies to general hypocritical behavior. First, it seems restricted to statements (arguments, testimony, etc.). Second, those statements seem to need to relate to communication where there is a notion of "taking a public stand", e.g., your account of an event to your insurance company, or your explanation to a government auditor. > Courts have held, for example, that the timing of the inconsistent statements is not necessarily determinative. Therefore, both statements need not have been made during the course of the same pending lawsuit. Nor is it absolutely necessary for both statements to have been made in court proceedings. For example, prior statements made to local, state, and federal agencies, or to insurance companies, if sufficiently inconsistent with a later position being taken before a court, can give rise to a judicial estoppel. https://www.lexology.com/library/detail.aspx?g=a2c93368-28d7-4c7a-bdbe-725d9ee380ee https://www.lexology.com/library/detail.aspx?g=a2c93368-28d7... From everything I've read, just behaving hypocritically is not enough.
Gorbzel 6y ago
Come oooonnnnnn... Obligatory disclaimer for everyone else: IANYL. Mostly, because armchair lawyering on the internet is the worst. That said – sure, estoppel is absolutely an important part of the judicial/common law canon. It's also often a last ditch effort when multiple other theories of the case fall through. In fact, before estoppel was mentioned, I thought OP was going for unclean hands, which might be truly the last hail Mary, and absent much more, estoppel is equally far down that list. Not sure which is worse: Dunning-Kruger here or if OP is actually in a position where (s)he should know better. All the Wikipedia and common law cites make me thing maybe a foreign attorney best case scenario. tl;dr: Extremely broad but rarely used as such legal principle is cited as reason Apple is legally DOOMED! From that misleading jumping off point, OP gleefully takes the giant leap to asserting that an otherwise novel and highly disputed antitrust case involving the App Store et al. is open and shut when it very much isn't.