Bar Exam Rollout Dumpster Fire Should Terrify Law Students
The NextGen Bar Exam is 2 years away and we still don't know much about what's on it. That's a huge problem.
The “NextGen” bar exam is coming in 2026. What does that mean? No one really seems to know! Which is less than great news for all the current law students about to be forced to take it.
The National Conference of Bar Examiners — the “non”-profit with roughly $138 million in assets that writes the exam — promised a new and improved “NextGen Bar Exam” after years of criticism from experts and practitioners, warning that the exam fails to accomplish any of its purported goals, and empirical proof that it doesn’t appreciably improve public protection. The prospect of reform, however begrudgingly undertaken by the NCBE, generated cautious optimism with 20 states so far jumping on board with the rollout.
It also prompted right-wing culture warriors to take to the national press to blast the reform for putting “DEI Over Competence,” to quote a WSJ piece. Why? Pure vibes. Alabama Supreme Court justice Jay Mitchell claimed it was vaguely less rigorous. But he also doesn’t understand proper written English, so consider the narrator. From the very limited glimpse we’ve had of the new test — in the form of sample questions posted by the NCBE — it seems little more than minor prompt rewording, asking the same old questions phrased as research assignments.
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But with the rollout shrouded in confusion and contradiction, legal educators are very worried.
This week, the Association of Academic Support Educators issued a statement noting that the scattershot rollout of the NextGen Bar Exam could exacerbate disparate outcomes.
Law school graduates will not be sufficiently prepared for the new bar exam scheduled to be administered in 2026. Twenty jurisdictions have already adopted the NextGen bar exam and six of the 20 have committed to administering the exam in 2026 even though crucial information about costs, scoring, portability, and the substantive content is not yet available. Only fractional information has been released about the exam, and there have been far too many substantial changes to that already fragmented information to allow academic support faculty and commercial bar review providers to effectively prepare current law students who will be in the first wave of NextGen examinees.
The launch may be two years out, but that means the inaugural cohort of examinees are already in class. It’s not even clear what subjects the students are supposed to master for this test.
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- On May 25, 2023, the NCBE announced the eight subject areas to be tested on the NextGen exam: Business Associations; Civil Procedure; Constitutional Law; Contracts; Criminal Law and Criminal Procedure; Evidence; Real Property, and Torts.
- The NCBE stated, that the new exam will no longer require examinees to have a base of knowledge in the areas of conflict of laws, family law, trusts, and estates, or secured transactions, but these topics may still be included in certain legal scenarios for which examinees are provided relevant reference materials . . . .
- However, on May 29, 2024, the NCBE contradictorily announced that from July 2026 through February 2028, family law and trusts and estates will appear on every NextGen exam in a performance task and may also be included in integrated question sets.
From afar this feels as though the NCBE is dealing with too many cooks. As though the initial, actually vetted conclusions ran into vexatious bellyachers — whether draping their concerns in race-baiting “DEI” lingo or not — claiming that the test could not properly test applicants without including their personal pet practice area and the authors are obliging by jamming it in at the last minute like Hollywood producers littering frames with unnecessary garbage in post.
Or maybe they just never really had a plan. That could be true too. Though not any more encouraging.
Has the exam been properly tested? Not that we can tell.
The NCBE conducted pilot testing for the NextGen exam from August 2022 to April 2023, but only limited and self-reported information is published about the outcomes of the pilot testing
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Notably that testing took place before they started adding subject matters.
On June 3, 2024, the NCBE announced that it will not provide legal reference material on the NextGen exam; but that it would provide relevant, targeted resources for some question types, and questions on certain topics within the foundational concepts and principles.
The whole point of reforming the bar exam was to get away from this nonsense. A generalist, doctrinal, closed-book memory test better reflects legal malpractice than a proper gatekeeping device. Does anyone want a family law attorney giving criminal procedure advice to a client without doing any research 10 years after graduating? Because that’s what the bar exam tests as a one-and-done, good for life test.
And while the NextGen Bar Exam never promised to solve the generalist, doctrinal, or one-and-done nature of this stupid ritual, one hoped at the very least it would begin the transition to testing legal research skills. Finding the right answer based on relevant source material is the essence of practicing law, yet it’s apparently going to remain the thing we DON’T test in deciding who gets to do the job.
Well, at least the NCBE has an answer for that:
The NCBE’s website says that it is still “exploring options for testing legal research” and that sample questions testing legal research will be available at a later date that remains uncertain.
“Exploring options” means “hoping you all drop the subject and just pay us millions of dollars for this test of dubious value like the rubes you are.”
Ask them a research question, give them a Westlaw/Lexis/vLex password (close their computer to everything else if need be), and give them 4 hours to draft a memo. If that’s too onerous to grade, work with the research platform in question to limit their searches to a universe of 50-60 cases of known relevance/irrelevance so it’s easy to issue-spot where they’re on the right and wrong track. That’s how you test legal research.
Please give me whatever millions you planned to give NCBE. Thank you.
Academic support faculty cannot appropriately aid in the bar readiness of our students and future graduates with vague, incomplete, and constantly changing information from the test maker. We implore the NCBE for its cooperation and recognition of the potential to exacerbate alarming disparities in test outcomes for law school graduates who have the greatest need for academic support programs.
No kidding.
Earlier: The Next Generation Of Bar Exam Questions: What They Are And Why They Still Suck
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
