concurring,
with whom PAUL KELLY, Jr. and HARTZ, Circuit Judges, join.I fully concur with the result reached by the majority and have no quarrel with its reasoning or the grounds upon which it rests the decision. I write separately only because addressing these appeals on the merits cloaks the arguments with undeserved dignity. This case is not about guilt or innocence; without question, these defendants molested children. It is not about process; both men have enjoyed a full measure. It is about Justice, writ large. It tests systemic resistance to abuse. It exceeds elastic limits.
Judicial estoppel is the appropriate basis for decision on these facts. It is a discretionary remedy courts may invoke “to prevent the perversion of the judicial process.” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting In re Cassidy, 892 F.2d 637, 641 (7th Cir.1990)). Several factors aid a court in determining when to apply judicial estoppel. “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. (citations omitted). Second, “whether the party has succeeded in persuading a court to accept that party’s earlier position so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was mislead.’ ” Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)). Third, “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808.
Although New Hampshire is a civil case, the discussion and application of judicial estoppel does not appear so limited. Id. at 749-51, 121 S.Ct. 1808. The type of case was not mentioned as a defining factor. To the contrary, the New Hampshire opinion freely cites both civil and criminal cases. See e.g., Russell v. Rolfs, 893 F.2d 1033 (9th Cir.1990) (criminal case); Davis v. Wakelee, 156 U.S. 680, 15 S.Ct. 555, 39 L.Ed. 578 (1895) (civil case); United States v. Hook, 195 F.3d 299 (7th Cir.1999) (criminal case); Allen v. Zurich Ins. Co., 667 F.2d 1162 (4th Cir.1982) (civil case); United States v. McCaskey, 9 F.3d 368 (5th Cir.1993) (criminal case). Judicial estoppel should be universally available because its “underlying purposes ... are the same in both civil and criminal litigation — to protect the integrity of the judicial process and to prevent unfair and manipulative use of the court system by litigants.” McCaskey, 9 F.3d at 379.
The arguments of Messrs. Beem and Henson beg for a summary response. Their actions easily satisfy the three-part test announced in New Hampshire. First, their current position (the element of kinship necessary for incest was not alleged and proved) is the antipode of their previous position (they were, in fact, related to their respective victims in the very way they now claim lacks record support). Next, their actions would certainly leave even the most casual observer to conclude “that either the first or the second court was misled.” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808 (quoting Edwards, 690 F.2d at 599). Messrs. Beem and Henson successfully convinced Kansas courts of the filial relationship they now seek to negate in the federal courts. Finally, were they to succeed in this charade, they would *1186“derive an unfair advantage” and “impose an unfair detriment.” Id. at 751, 121 S.Ct. 1808. In 1989, a jury convicted Mr. Beem of taking indecent liberties with a child. In 1995, his sentence was reduced based solely upon his argument that he was related to his victim and should have been treated accordingly. In 1992, a jury convicted Mr. Henson of raping his stepdaughter. He also played the kinship card, which yielded a reduced sentence for him in 1994.
Now, more than a decade after their convictions, both men seek to vacate those convictions and sentences in spite of a fully adequate decision by the Kansas Supreme Court resolving the anomaly in Kansas law. Carmichael v. Kansas, 255 Kan. 10, 872 P.2d 240 (1994). Granting habeas relief would leave the State with the Hob-son’s choice of dismissing the case entirely or retrying them for aggravated incest. See Beem v. McKune, 278 F.3d 1108, 1114 (10th Cir.2002). A retrial on these facts is singularly inopportune because (1) it “imposes significant social costs” of time and money, (2) convictions become more improbable with each passing year because of “erosion of memory” and “dispersion of witnesses,” and (3) “society’s interest in the prompt administration of justice” is frustrated. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotations and citations omitted). Implied, but not directly mentioned, in the Brecht analysis is another form of decay; inertia, along with prosecutorial zeal, is lost on a ten year old case when the state’s resources are fully occupied with new crimes and still writhing victims. The systemic burdens are palpable and in no way tempered by offsetting benefits since the arguments are unencumbered by credible claims of innocence.
For years, this circuit has taken a minority position in rejecting the principle of judicial estoppel. United States v. 162 Megamania Gambling Devices, 231 F.3d 713, 726 (10th Cir.2000); United States v. 49.01 Acres of Land, More or Less, Situate in Osage County, Okla., 802 F.2d 387, 390 (10th Cir.1986). Now is the time to embrace the invitation extended by the Supreme Court in New Hampshire and join other circuits in reining in those litigants who play “fast and loose with the courts.” Sperling v. United States, 692 F.2d 223, 227 (2d Cir.1982) (Graafeiland, J., concurring) (“Sperling II ”).1
Sperling successfully argued that a conspiracy count was a lesser included offense of continuing criminal enterprise. United States v. Sperling, 560 F.2d 1050 (2d Cir.1977) (“Sperling I ”). Buoyed with success he returned to the district court with a 28 U.S.C. § 2255 petition seeking to have the enterprise count vacated upon grounds inconsistent with his former arguments. Sperling II at 225, 228. His inconsistency did not resonate with the Second Circuit. “Whether we base our holding on a theory of estoppel, waiver, preclusion, or abuse of writ, we should not permit such piecemeal, inconsistent, and mutually exclusive attacks on a judgment of conviction as have occurred in this case.” Id. at 228-29.
Likewise, a district court would not permit a criminal defendant who successfully argued in one proceeding to specifically enforce his plea agreement, to later argue the entire plea agreement, including his guilty plea, should be set aside. United States v. Velez Carrero, 140 F.3d 327 (1st *1187Cir.1998). The First Circuit affirmed upon the able opinion of the district court, but it went out of its way to articulate four additional reasons for rejecting the defendant’s arguments, among them was judicial estoppel. It reasoned when a defendant prevails upon a stated position and later attempts to take unfair advantage by inconsistently arguing against that prior successful position, “[s]uch an arbitrary about-face cannot be countenanced.” Id. at 330.
In light of New Hampshire, we can no longer categorically eschew judicial estop-pel. We should exercise our discretion to reject perverse argument, husband our resources, and protect the integrity of the judicial system.
. The majority opinion for Sperling II consists both of Judge Timbers "majority” portion and ' Judge Van Graafeiland's concurrence. As Judge Timbers explained, "[s]ince I agree with Judge Van Graafeiland's concurring opinion ... and he agrees with mine, the two opinions together constitute the majority view of this court.” Sperling II, 692 F.2d at 224 n.