Keeping Up with the Henthorns

Written by Albany Law School Professor, Melissa Breger.

Keeping up with current case law can be a true treasure trove for classroom teaching. It can breathe life into an otherwise ordinary topic. And truth is so often more compelling than fiction.

A few years ago, while reading the Evidence Law Faculty ListServ, I learned about the case of US v. Harold Henthorn. (Thank you to Ann Murphy, Gongaza Law!)

 Henthorn had been recently tried federally for the intentional murder of his wife, Toni Henthorn. He claimed his wife of 12 years, Toni, accidentally fell off a remote 100-foot cliff in Colorado. The team of AUSAs on the case wrote a brilliant motion to try to introduce FRE 404(b) evidence. The motion was granted.

Click here to review the motion.

The prosecution sought to introduce:

  1. Evidence that Lynn Henthorn, also Harold’s well-insured (former) wife of 12 years, “accidentally” and mysteriously died under a Jeep in the middle of the night in a remote location;
  2. Evidence that Harold took out very hefty life insurance policies as beneficiary for his wives, as well as for his former sister-in-law (of whom he was also romantically interested); and
  3. Evidence that a 40-foot wooden beam “accidentally” hit Toni Henthorn from the roof of the remote lake cabin in the middle of the woods some years earlier.

The trial court agreed to allow in the previous events where Lynn died and Toni was injured, and the fact that life insurance was taken out on both of Henthorn’s wives with himself as a beneficiary. The Court did not allow in the claims that Henthorn also took out an insurance policy on his sister-in-law’s life. The Court required limiting instructions on the pieces of evidence it allowed in at trial.

In class, I explain to the law students the story of the Henthorn family, but I do not have them actually read the cases or the motions until after we have discussed the case in class. (After class, all of these materials are posted and distributed). In the classroom, I have the law students analyze each piece of evidence that the prosecution is trying to enter into evidence under FRE 404(b).

Click here to review Rule 404(b).

This exercise offers a rich, nuanced vehicle for discussion to explore the very important Rule of Evidence, FRE 404(b), in comprehensive detail. The rule, also misleadingly called the Rule of “PRIOR BAD ACTS” reads:

Character Evidence.

404 (bCrimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

At the same time there were eerie similarities between the events, there were also obvious differences. The defense certainly had much room to dispute the idea that there was any common plan or scheme here. The events were also decades apart in timing.   The trial court allowed in the acts with limited instructions that they be considered only under “planning, intent, and lack of accident.”

When the 10th Circuit reviewed the case, the Court noted that prior events were “extraordinarily similar to the charged offense.” In terms of the large span of years between the events, the Court noted “acts “quite remote to the crime[] charged have frequently been deemed by us and our sister circuits to be relevant if they were sufficiently similar to those crimes.”

Click here to review the 10th circuit case.

The case, while truly tragic and disturbing, has provided future lawyers with a wealth of material for learning complicated concepts about FRE 404(b), The Doctrine of Chances and the admissibility of prior crimes, wrongs and other acts.






Drafting Exams With Test-Taking Speed in Mind

It’s time to write final exams again. It’s also time to struggle with what role test-taking speed should play in our assessments.

William Henderson’s Study

As Professor William Henderson’s ground-breaking study demonstrates, test-taking speed – how fast students can read and answer test questions– is often an independent variable when students take in-class timed law school exams.

As Professor Henderson cautions, given the high stakes nature of law school exams, we need to be cognizant of the test-taking speed variable and consciously decide whether it is one we think is important in terms of the substance or skills being assessed. As he notes, test-taking speed may have limited relationship to how lawyers use doctrine and legal analysis and it also may have a discriminatory impact.

Potential Solutions

Some faculty members address the test-taking speed issue by giving take-home exams or papers. Others do not want to give take home exams for a host of reasons, including the belief that the material does not lend itself to a take-home exam or concerns about policing academic honesty.   For those of us giving timed, in-class exams, are there ways to decrease the impact of test taking speed? Below I share a few ideas. I also invite those of you who have grappled with this issue to share what you are doing.

A. Pre-release exam instructions

One way to help students at least prepare for time constraints is to release exam instructions ahead of time. In many classes, the exam  instructions identify how many questions and provide suggested time allocations. This information, shared in advance, can help students plan their time before they take the test.

B. Pre-release a couple of questions

In addition to pre-releasing instructions, 24 hours before an exam, I pre-release a couple of short answer questions [worth 10-15% of the total raw score points]. This allows students to prepare answers to those questions ahead of time.  For those questions, I minimize the test-taking speed issue.

I allow collaboration on the pre-released questions so I do not need to police students. I also warn students about the dangers of collaboration and letting others lead you down the wrong path.

C. Time yourself

I also take the test myself, timing how long it takes me to answer a question or set of questions. I double or triple the time allotted based upon how long it took me, or in some cases how long it took a colleague who gave my exam a test run. For example, if it takes a professor about two minutes per question for a set of multiple choice questions, I allot four to five minutes per question for my students.

Some may argue that allowing five minutes per multiple choice question does not prepare students for the bar exam – an exam in which students have under two minutes to answer often fairly complex multiple choice questions. That point is correct and it raises the interesting question of whether one’s course grade should be capturing bar exam taking skills.  It also raises the bigger question about whether test-taking speed is a variable that we, and bar examiners, should be assessing.

Reliability and Validity concerns

Significant time to answer a question necessarily means a test with fewer questions. For some, this prompts reliability and validity issues [fewer questions may reduce the reliability and thus the validity of an exam]. On the other hand,  test-taking speed as an independent variable also raises questions about test validity.

Making Sure We Understand the Issues

These are complicated issues and different faculty may have different answers to the test-taking speed questions. The key is not necessarily how we answer these questions – it is that we are asking ourselves the questions as we draft our exams.

Artificial Intelligence, Algorithmic Knowledge and the Future of Law Schools

Written by: Christian B. Sundquist, Professor of Law at Albany Law School

When thinking about the future of law schools, the unceasing technologicalization of legal practice and education, embodied in part by law-based artificial intelligence and the emergence of “lawyer-bots,” deserves critical analysis. A common fear, articulated by many, is that looming improvements in artificial intelligence will render the majority of traditional legal jobs obsolete, thus dramatically calling into question both the existence and traditional mission of law schools.

Indeed, it is well known that law firms and lawyers across the world have begun integrating law-based artificial intelligence systems into their practice to improve efficiency and the delivery of lower-cost basic legal services to clients. IBM’s “ROSS” AI system, touted as “the world’s first artificially intelligent attorney,” was developed to provide answers to legal questions (culled from its analysis of legal databases) and monitor case law and other developments. E-Discovery technology has advanced to the point where an AI system such as COIN (a JP Morgan software program) can perform (in mere seconds) document reviews of complex matters that used to require 360,000 human hours. Online legal services companies, such as LegalZoom, provide outsourcing of basic legal drafting and other tasks. A recent study demonstrated that a law-based AI system was able to more quickly and accurately identify potential legal issues in a series of non-disclosure agreements than seasoned contract attorneys. And automated “lawyer-bots,” such as DoNotPay, which help people sue Credit Reporting agencies and contest parking tickets, are quickly proliferating.

The practice and education of law, of course, has long been impacted by emerging technologies that have changed how lawyers approach certain tasks. For example, the development of efficient online legal research tools (such as Westlaw and Lexis) dramatically reduced the number of billable hours a lawyer spends on researching basic legal issues (and, perhaps, the nature of legal research itself). Similarly, the advancement of e-Discovery methods over the last decade (coupled with technological improvements that expanded the controversial outsourcing of low-level legal tasks) have largely eliminated the need for junior lawyers to devote a significant portion of their time reviewing sensitive documents by hand.

Such emerging technologies can be seen as eliminating the need for lawyers to perform certain tasks and services (such as basic legal research, the drafting of basic legal instruments, etc.), and thus negatively impacting legal employment opportunities. However, the same technology can be embraced as improving the efficiency and cost of legal practice, while (perhaps) expanding access to justice and allowing lawyers to devote more energy to complex legal and analytical issues.

We cannot stop the march of the lawyer-bots, but we can do our best to prepare students for the newly emerging techno-legal landscape. Whereas the traditional legal model was based on the transmission of information and descriptive knowledge (which has now largely been displaced by technology), the new legal model must be based on critical analysis, creative problem-solving and emotive client-based lawyering (which cannot yet be so easily replaced by “narrow” systems of artificial intelligence). The law schools of the future (today) will need to ensure that students are being prepared to:

  • engage in high-level critical analysis (such as the ability to develop, understand and articulate policy arguments), engage in complex oral and written advocacy, and appreciate theoretical (jurisprudential) explications of the law;
  • provide creative solutions to complicated legal problems (such as providing individualized advice to clients and engaging in interdisciplinary group problem-solving activities); and
  • provide emotive client-focused representation (such as by further developing professionalism and negotiation skills and enabling students to interact with a diverse range of persons).

The compiling and interpretation of legal information by new technology, nonetheless, is still subject to potential coding bias in the algorithms and assumptions that underlie law-based artificial intelligence systems. Much has been written about such machine-learning bias and how the production of algorithmic knowledge can replicate existing patterns of social inequality (by reinforcing gender and racial stereotypes). For example, the emergence of predictive policing models (such as PredPol, used by law enforcement to identify the likelihood of future criminal activity) and predictive risk assessment software (where judges around the country are beginning to use such algorithmic knowledge to determine criminal sentencing based on the likelihood that a person will commit a future crime) have been heavily criticized on privacy and racial justice grounds. As such, law schools also owe their students a duty to help them identify and critically interrogate the core assumptions that foster the development of such algorithmic knowledge, while enabling students to work closely with AI programmers to develop and implement future legal technology




Are we prepared for the new generation of students inspired by Dr. Martin Luther King’s legacy?

Yesterday marked the 50h anniversary of the day that a man fatally shot Dr. Martin Luther King, Jr., outside his hotel room in Memphis. Dr. King had traveled there to address poverty and workers’ rights – global issues of inequality that were playing out in a local arena. Not quite three years earlier, Dr. King stood next to President Lyndon Johnson as he signed the Voting Rights Act into law. The Act was a crowning achievement of a strategic fight. Peaceful activists waged the long battle to overcome legal barriers that prevented African Americans from exercising their right to vote. But the battle left real victims, bloodied from counter attacks often waged with weapons intended to cause serious bodily injury or death. (For a well-written account of the strategy, see Louis Manand’s piece in the New Yorker:

In 2018, a new group of civil rights activists have marched to protect themselves and their peers from these same weapons of death and destruction. These activists are young high-schoolers, and they have been attacked for being “brainwashed” and not “fully rational actors.” Their youth, the very thing that made them uniquely vulnerable to easily acquired assault weapons, has been used to diminish their message.

But youth have been leaders of transformative moments throughout our history. From racial segregation to the Vietnam War to nuclear weapons, students have led protest movements and created change. This new movement has garnered attention. Leaders recently met with members of Congress. They were mocked by Laura Ingraham and encouraged by Pope Francis. Supporters showed up in marches around the world. They are on a roll, and they seem completely capable of continuing the momentum. (For an interesting article on youth-led movements see Rebecca Onion’s article in Slate:

But students’ protests aren’t just focused on Congress and the NRA. College students occupied Howard University’s administration building with a list of demands, some as reasonable as developing a better system to address sexual assault and mental health issues. These students seem tenacious and confident that their collective power can make change. (See Adam Harris’s article “How the Howard University Prostests Hint at the Furure of Campus Politics”:

Many of these students will join the new surge of law school applicants who want a legal education so they can change the world. Are we prepared? Will our curricula provide these students with tools from different disciplines to help them understand what ails the nation from a variety of different perspectives? Will we create enough experiential learning opportunities to meet this generation of change agents’ needs? Will our career development offices preference Big Law over lower paying public interest jobs? When students’ activist dreams leave them with overwhelming debt, how can we help?  As we attempt to comply with educational mandates, will we abandon hard-to-measure learning outcomes? Are we equipped to teach our students leadership skills in a tech driven society? Will we provide all students a safe and inclusive place to learn? Will our teaching inspire resiliency in the face of stubborn resistance?

Law school teachers and administrators would be wise to listen to these young voices. It’s our responsibility to teach the next generation of legal actors. We must be prepared with new ideas. (And many have already have started the conversation, like Katie Redford, in her article, Attention, Law Students: Our Country and Our Planet Need You to Lead, 69 Stan. L. Rev. 1831 (2017).) We must be willing to learn new skills and solve old problems. Otherwise, our attempts at legal education may impede their progress rather build their platforms for success.

The Kids Are Alright

Regardless of your position on gun regulation, the work of the students of Marjory Stoneman Douglas High School in Parkland, the latest victims of yet another act of senseless gun violence, has to be inspiring, if not a little humbling.  They are putting adults to shame, literally and figuratively.  Their eloquence, passion, and even their social media smarts, are creating a moment of reckoning in this country.  The so-called “adults in the room” cannot hold a candle to these students’ capacity to mobilize, empathize, reach across difference, and move a nation to action.

Many seem surprised by this. As an educator who teaches many millennial law students, I am not.  I see my students accomplish amazing things, and am constantly inspired by their intelligence, willingness to roll up their sleeves, and go to work.  Moreover, as a former law student myself (although, admittedly, nearly three decades ago), I saw students work together in the face of resistance, and the stories I have read about the work of the Parkland students and the thousands more who have taken up this fight resonate and are reminiscent of work that has occurred and will continue to occur, carried out by eager and passionate students who won’t take no for an answer and continue to “Call BS” when necessary.

What we are seeing in action is perhaps the greatest student project ever undertaken.  From the outside looking in, it looks like the students are working collaboratively and sharing the spotlight among themselves and with others outside their immediate circle.  They appear incredibly supportive of one another, are pressing ahead in support of a cause larger than themselves though grounded in their personal experiences of tragedy, and are reaching out to others to build bridges across geographies and communities. They are accomplishing slow and steady wins that help to build momentum, sustain their energy, and create confidence to take on the next challenge. In short, they are doing all of the things that a group needs to do in order to produce meaningful change.

In academia, many fear the group project.  But it is how the world functions, and how humans have been operating for millennia.  In fact, our capacity for cooperation is probably what makes us human.

Such group activity can also can have its downsides, and not just in terms of the free rider who benefits from the work of others.  Rather groups can take on a life of their own, and distorted and harmful collective understandings can emerge as a result.  In the wake of the collective tragedies of Nazism and Stalinism, “groupthink” became a source of serious academic study. But on the brink of World War II, Hungarian sociologist Karl Mannheim wrote about how industrialization and urbanization was impacting our collective capacity for this sort of groupthink as follows: “life among the masses of a large town tends to make people much more subject to suggestion, uncontrolled outbursts of impulses and psychic regressions than those who are organically integrated and held firm in the smaller type of groups.  Thus industrialized mass society tends to produce the most self-contradictory behavior not only in society but also in the personal life of the individual.”

The students of Parkland and the many others who are emerging into the broader spotlight are organizing themselves at the local level, school-by-school and community-by-community, and helping the rest of us see the disastrous and ruinous groupthink that has captured the collective imagination around gun control.  And they are doing it in remarkable ways, sustaining their collective energy in the wake of tragedy.

Recent research into how groups can work effectively, carried out by Google in what it called “Project Aristotle,” identified a series of common components in effective groups, including the following:

  • Dependability: getting things done on time and accurately;
  • Structure and Clarity: having clear goals and clear roles;
  • Meaning: the work is personally important to the team members;
  • Impact: team members think their work matters and will bring about change;
  • Psychological Safety: team members feel safe to take risks and be vulnerable in front of others.

From the outside looking in, the Parkland students and the many others who have been working for meaningful responses to gun violence who have gained greater attention because of the Parkland tragedy, appear to meet these criteria for successful groups.  They pulled off hundreds of simultaneous rallies across the country in a matter of weeks.  They could not have done so had they not had some structure and clarity to their work, did not see the importance of their work, and did not derive meaning from it.  And it would appear that they are incredibly supportive of each other, both within their own groups and in relation to each other.  For example, during Saturday’s march in Washington, when a student, Samantha Fuentes, who was wounded in Parkland, was addressing the crowd, she paused a moment, turned away from the lectern, and vomited.  Other students rushed to her side, urged her to keep going.  She emerged from being doubled over to proclaim: “I just threw up on international television and it feels great!”

The students leading this campaign should be an inspiration to everyone who wants to bring about change, and can help us understand how we can do it collectively, because it is in such group efforts that real change is possible. I have written about my own experience as a law student working on a case, brought by a law school clinic, that challenged the U.S. government’s treatment of Haitian refugees in the early 1990s, a case which ultimately went to the Supreme Court.  In ways that echo the work of the Parkland students, but by no measure on the same scale or with the same impact, the team effort there, led by students, invoked many of these themes as well, and can help show how law schools can harness the collective capacities law students have for bringing about change.

In an oft-quoted phrase, Margaret Mead said to “never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”  How such groups should actually go about doing that is another question, and the Parkland students and the thousands of others who have been inspired by their work, or who have finally gotten the attention they deserve, may just show us the way.

Podcasts on law student well being

Dean David Jaffee shares exciting news about a new podcast series on law student mental health.  Below is his announcement:

“I write to share with you a new podcast series, The Path to Law Student Well-Being,sponsored by the Law School Assistance Committee to the American Bar Association Commission on Lawyer Assistance Programs (CoLAP).

The inaugural two-part episode is available here, just below the live Twitter Town Hall taking place this Wednesday.

This episode features two short conversations with Dean & Professor of Law Michael Hunter Schwartz of the University of the Pacific’s McGeorge School of Law and Professor Larry Krieger of the Florida State University College of Law and is moderated by Professor Susan Wawrose of the University of Dayton School of Law.

  • In the first part of this episode, Dean Schwartz and Professor Krieger suggest ways individual faculty members can notice, engage with, and support students they suspect are in distress.
  • The second part identifies steps faculty can take to promote student well-being through their teaching in the classroom and includes simple actions for law school administrators.

The podcast series is a response to the call for action in the 2017 National Task Force Report The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, which was sent to all law schools last fall and sets out specific action items for the legal community, including some specific steps for judges, regulators, employers, bar associations, lawyer assistance programs, and law schools.

We hope you will share the news of these new podcasts widely with your faculty, staff and colleagues to help bring awareness to the ABA’s Law School Mental Health Day tomorrow, March 28, and to encourage discussion and action within the law school community around the critically important of topic of law student well-being.”



Don’t Just Keep Swimming–Dive In

Another law school closed this week. I opened my Twitter feed today to search for newsy ideas for this post and discovered this story announcing the closure of Savannah Law School. The legal market has undergone tremendous change the last 10 years, and legal education is impacted in ways that are still unfolding. How do we sustain a system that sometimes seems built on shifting sands?

Years ago one of my students submitted an essay featuring the tag line “Just Keep Swimming” from the film Finding Nemo. It was a metaphor for her coping with a tough semester that included a major flood in our law school’s clinic space. I’ve reflected on that many times when I’m overwhelmed by my workload, or what I perceive–possibly wrongly–as student apathy, or the employment market for our new graduates, or any number of other #firstworldproblems. But as I pondered this somewhat existential question today in preparation to draft this post, a different approach came to mind. Like the turn of a kaleidoscope, my perspective changed to the metaphor of a deep dive rather than a slog-like swim.

The phrase “deep dive” is perhaps overused. I find it useful, though, when contemplating projects that require me to screen out distractions, focus on a goal, and exercise a bit of grace. Preparing to teach each class period is like that for me. I turn off my email, close the door, vigorously re-read the material and refine my notes. I get creative with PowerPoint and put myself in the shoes of the student–what images would bring this doctrine to life? Which sentence of a court’s decision captures its holding so perfectly that it deserves a spot on my slide?

We are educators of people who will contribute to our legal system’s continuing evolution. We have tremendous opportunities to shape their work style, expectations, and self-awareness as future lawyers. And our profession is self-regulating. After they graduate, they are largely autonomous.  We should dive into the sea of legal education every day with elegance and precision.  Drop us a comment–what does a deep dive look like for you?

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