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32 Calif. L. Rev. 74 (1944)
Evidence: Clear and Convincing Proof: Appellate Review

handle is hein.journals/calr32 and id is 92 raw text is: California Law Review Published Quarterly throughout the Year by Students of the School of Jurisprudence of the University of California, Berke- ley, California. Indexed in Index to Legal Periodicals, Public Affairs Information Service and Current Legal Thought. Subscription Price, $3.50 Current Single Copies, 90 Cents BOARD OF EDITORS BRYANT M. BENNETY, Editor-in-Chief ALDo P. GumoTnI, Associate Editor LLOYD A. CAnLsoN MARY VIRGINIA PYNE Louis C. GmER GAu A. STRADER Jom H. SwAN CAmm MARTIEZ, Manager Comment EVIDENCE: CLEAR AND CONVINCING PROOF: APPELLATE REVIEW While the keystone of our system of administering justice is the trial judge,' the foundation of the system is adherence to precedent established by appellate courts. If trial judges should be free to pro- pound their own rules and standards, the decisions reached in law- suits, in many cases, would depend upon the views of the judge who happened to be sitting upon the bench at the time of the trial2 Although the authority of precedent is firmly established in the law, there are some situations where the trial judge is the final arbiter. In many cases this is as it should be, for he is in a better position to decide the question than the appellate court. However, in other situ- ations, appellate courts have left matters to the discretion of the trial judge that should be decided by them. Rules of law should be en- forced, or be altered or be abandoned. To permit a trial judge to apply a rule of law in any manner he sees fit destroys the force of the rule. Appellate courts may pay lip-service to a rule and it may be set forth in profound language in the reports and restatements, but if trial courts may disregard it without reversal, the rule is without effect. 1MORGAN, Foreword to the MODEL CODE OF EVIDENCE (Am. L. Inst. 1942) 7. 2For it is an established rule to abide by former precedents, where the same points come again in litigation: . . . to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion ... ' 1 JoNEs' BrAcxsToNE (1915) 117.

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