WE READ SO YOU DON’T HAVE TO

SOMETHING FISHY

Concerning the Seventh Circuits infamous statement that, for a factual finding to be clearly erroneous, it must strike us as wrong with the force of a five-week-old, unrefrigerated dead fish. Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

The dead fish test is clever–it got its own West key number–but probably unhelpful, arguably wrong, and likely a fluke of rhetoric. To some extent, if we may carp, the test overstates, since Rule 52 allows more appellate second-guessing over trial judges than the Seventh Amendment allows over juries. In nonjury cases, by contrast, the court may right the scales of justice, if the record as a whole demands…Although the Seventh Circuit has repeated this test in subsequent cases applying Rule 52 review and similar contexts, it should be left to flounder. For other courts considering this test: caviar emptor. Nevertheless, courts in other circuits also began to apply the test,. ..unfortunately accepting it hook, line, and sinker–despite its inaccuracy. The ray of
hope, however, is that the test tends to be used as mere rhetoric …We await with bated breath its explicit burial by some, future, careful court.

1 Steven Alan Childress & Martha S. Davis, Federal Standards of Review s. 2.06, at 2-42 to 2-43 (4th ed. 2010) (emphases added) (footnotes omitted).

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