Preparing for the NextGen Bar Exam: Questions to Consider

Last week, the National Conference of Bar Examiners released a preliminary set of content outlines for the NextGen Bar Exam. If the timeline holds, this new bar exam will be implemented in 2026. While this seems a long time from now, it is not. Part-time students who enroll this Fall will take this new bar exam. As a result, many schools are now considering how best to adapt to the new bar exam, which has a (1) reduced number of doctrinal subjects tested and (2) increased testing of skills.

Here, I list the questions that I am thinking about both generally and for my school:

  1. What are our school’s goals besides bar passage? It may seem bizarre to start with this question on a blog post about the bar exam, but I think it is the most important. Law schools are not three-year bar preparation programs. We have other goals for our students and ourselves. Career placement, for instance, is an important outcome for law schools. Preparing students for careers in the legal profession requires a curriculum that may not necessarily align with one specifically designed just for the bar exam. Entry-level employers may wish to see students who have knowledge, skills, and values that are not tested on a bar exam. In addition, lifelong success in the legal profession—however we define it—may warrant preparation that does not align with the bar exam. Knowing at the outset what our other goals are will help us to balance what may be competing priorities for a limited number of credits in the curriculum. 
  2. What are our ethical and consumer protection obligations to students? Professor Melissa Shultz (Mitchell Hamline) makes a compelling case in a forthcoming piece in the Journal of Legal Education that law schools have an obligation to prepare students for the new bar exam by taking action now so that students who will sit for that exam will be fully prepared for it. “These monumental changes to the bar exam,” Professor Shulz writes, “do not allow for the legal academy to take a tempered ‘wait-and-see’ approach before taking action.” Her article shares a number of helpful strategies for doing so.
  3. To what extent does our existing curriculum align with the Uniform Bar Exam? If a school has high bar passage and its curriculum is not particularly aligned with the UBE subjects, it may be that only minor modifications are needed. These are likely schools that enroll students who are excellent test takers and will do well with any format of exam. For most schools, however, their curricula may be somewhat or significantly aligned with the UBE content outline. As a result, they will need to do a more significant re-alignment of their curricula to meet the new bar exam while still achieving other curricular goals (#1).  
  4. To what extent does the NextGen bar exam differ from the UBE in doctrinal subjects that are tested? We know that some subjects, such as Secured Transactions, are being dropped from the exam. What are they? Within each subject that remains, how is coverage changing? What is added or dropped? We must all become experts on what the new bar exam is and is not so that we can speak and act thoughtfully on the subject.
  5. Where is the doctrine tested on the NextGen bar exam taught in our existing curriculum? Are there any curricular gaps? Since the NextGen exam largely removes doctrine rather than adding it, I imagine the answer at most schools is that there are no gaps in substantive and procedural law.
  6. Which skills will be tested (or tested more heavily) on the NextGen bar exam? This is the most signficant change to the bar exam in my view—the heavy testing of lawyering skills. 
  7. Where are those skills taught in the existing curriculum, if at all? Are they taught in-depth or just in a cursory fashion? How are they assessed? A curriculum map may be helpful, as are focus groups and surveys of faculty who teach what may currently be specialized electives with low enrollments. 
  8. How do we adapt the curriculum? This is the most significant question and requires consideration of: a school’s other goals (#1), its ethical and consumer protection obligations (#2), the extent to which a school focuses on bar passage (#3), the gaps in doctrine (#5) and skills (#7) between the current curriculum and the new bar exam, and whether there are gaps in faculty expertise that may require a new approach to hiring (#10).
  9. How should our teaching methods and assessments adapt to prepare students for the format of the new bar exam? The new bar exam will employ different assessment tools than we are used to. To what extent should we expose students to them while they are in law school?
  10. How does the NextGen bar exam impact faculty hiring? The number, type, and subject matter expertise of new faculty may need to be reconsidered if a major curriculum realignment is expected.  
  11. What timeline should we follow? Has the NCBE stayed on track with its timeline, suggesting that a 2026 implementation is likely? If so, what steps do we have to take and when to meet our ethical and consumer obligations (#2) and prepare our students for this new exam while still ensuring that current students taking the UBE in interim are well-prepared for that exam?
  12. What should be the process of educating faculty, administrators, and students about the new bar exam and getting buy-in from constituent groups about the new exam? Education and buy-in are two separate considerations.
  13. Will our state’s supreme court adopt the NextGen bar exam? Just as law schools are thinking about the bar exam, state supreme courts are looking at whether they will sign on to the NCBE’s new test or go in a different direction. If most of a law school’s graduates will sit for the bar exam in a state that does not adopt the NextGen bar exam, much of these considerations are mooted. However, the school will still need to think about how it is preparing students for the bar exam that they will take. In addition, a school will need to consider the students who will sit for a NextGen bar exam out-of-state.
  14. Is the NextGen bar exam such a significant shift that it warrants rethinking our admissions criteria? ABA Standard 501(b) requires that law schools only admit students who appear capable of being admitted to the bar exam. If the bar exam changes, it may be that predictors of success change. Should we put different weight on the LSAT/GRE, UGPA, work experience, and references than we do now? Unfortunately, we will not have data on whether our existing admissions framework remains predictive until after the first few cohorts sit for the new bar exam.

It may be there are other questions a school should consider, and I will keep adding to the list as I think of them.

The New Bar Exam: Out With the Old or More of the Same? Perhaps Some of Both.

The National Conference of Bar Examiners’ “Testing Task Force” is out with its preliminary recommendations for the “Next Generation of the Bar Exam.” 

What’s the Same: Timing and Number of Exams

A lot of it is “same old, same old.” For example, the Task Force recommends sticking with a single bar exam rather than multiple assessments at various points in a student’s law school career. The latter approach is one familiar to medical education, where MD and DO students take exams at three separate points in their careers: after their second year, after their fourth year, and a year into their residencies. In addition, the bar exam will continue to be given only twice a year. I disagree with both decisions. I would rather see students tested on foundational subjects after the first year and given time to retake the exam if needed while still in school. Offering the test more often would also benefit students who do not do well on standardized tests and need to retake one or more portions. The report counters, “The Task Force concluded that the use of an integrated exam with an increased emphasis on assessing skills and more limited depth and breadth of coverage of doctrine addresses the underlying reasons some stakeholders favored multi-event testing.” This is not an unreasonable position, but it remains to be seen how integrated the new exam actually is. If there is still a clear demarcation between doctrine and skills, I would prefer two exams that can be taken independently. The report does not explain why the Task Force is recommending keeping only two administrations, but I imagine it is because of the practicality in developing and scoring multiple sets of questions on an ongoing basis.

Format Changes

Changes that are proposed in the report are significant. For example, the bar exam of the future will be administered all on computer, but the report notes the importance of accounting for takers who require accommodations. In addition, the report proposes a mix of more styles of questions beyond multiple choice, essays, and performance tests (e.g., selected-response, short-answer, and extended constructed-response items). A question “set” might propose one set of facts that are then tested with various kinds of questions that follow. This will make the authorship of questions easier.

Integrating Doctrine and Skills: A Significant Change in Attorney Licensing

In terms of content, the biggest change is that the exam would more clearly test both “doctrine” and “skills.” Doctrine—what the Task Force calls the “Foundational Concepts and Principles”—would be divided between eight subjects (Civil Procedure, Contracts, Evidence, Torts, Business Associations, Constitutional Law, Criminal Law/Procedure, and Property), a significant reduction from the current number tested on the Uniform Bar Exam. If other subjects are tested (e.g., Family Law), the law would be provided to students.

The second set of outcomes are skills based (“Foundational Skills”). This is where it gets interesting. The Testing Task Force proposes to test on legal research, legal writing, issue spotting/analysis, investigation, client counseling, negotiation, and client relationship/management. “Foundational Skills” could be tested in the context of the “Foundational Concepts and Principles,” and vice versa. Moreover, the “new” bar exam might assess skills in “uniform text- or video-based scenarios that require candidates to construct a written response or select the correct response.”

The Task Force envisions that it would take 4-5 years to develop this new type of exam and provide appropriate notice to law schools and law students. The NCBE may be underestimating the notice and lead-up time that is required. For a small number of schools, the bar exam is an afterthought. For most schools, however, the bar exam drives at least some curricular decisions. It is a fact of life (and law school administration) that if the bar exam changes, law schools and their students will respond in some fashion. As an example, look at what happened when states have moved to the UBE. Law schools stopped offering as many as state-specific courses, and fewer students took the electives that remained. In some states, the change to the UBE was done abruptly (unfairly, in my view) without sufficient time for 2Ls and 3Ls to take different courses. I am glad the Task Force recognizes the importance of notice. However, the change in focus from doctrine to a blend of doctrine and skills may require a substantial reconfiguration of the modern, American law school, so that all of the skills tested on the bar exam can be taught and assessed properly. Among other things, the change may force schools to re-think their faculty hiring practices, bringing in fewer JD/PhD’s who focus on theory and scholarship and more practicing attorneys who teach hands-on skills. Courses and degree sequences might need to be designed so that all of the skills tested on the bar exam are taught and assessed. Some schools may have the luxury of ignoring the bar exam, but I suspect many schools will wish to track (at least partly) what is tested on the bar exam. Whether that means courses in investigation and client management will become required for all students remains to be seen. I suspect, though, that schools will not want to risk causing licensure problems for their students and will try to adapt as much as possible to the new outcomes.

The bar exam is as much a test of competency as a signaling device about what is and is not important. As someone who comes from the “skills side” of legal education (I was a legal writing professor and clinician before joining Charleston School of Law), I am thrilled to see more of a focus on the exam on the actual skills that law graduates will need in practice. But rest assured that a shift in focus on the bar exam will have significant ripple effects as law schools adapt their required, core, and elective curricula to prepare students for this important, high stakes exam, especially given how ABA Standard 316 looms over our heads.

But Will the State Supreme Courts Follow NCBE’s Lead?

All of this is very interesting, but it remains to be seen whether the NCBE will actually implement these recommendations and, more importantly, whether the state supreme courts will utilize such a “new” bar exam. At this point, this is a preliminary set of recommendations, although the fact that the Task Force is made up of such influential members in the bar exam world, including Judith Gundersen, makes it likely that the full NCBE will proceed with adopting the report in some fashion. But I would not underestimate the resistance that the NCBE is likely to encounter from state supreme courts, which have the ultimate licensing authority over attorneys. Some courts are likely to prefer a focus on doctrine, since it is the type of exam that they were licensed under as attorneys. On the other hand, there have been complaints from the bench for years that new lawyers did not have the requisite skills to practice law, so perhaps courts may be more receptive to this kind of blended exam.

The other sector that will need to change if this “new” bar exam goes through is the bar preparation field. Teaching doctrine to hundreds or thousands of law graduates at a time is relatively easy since materials (especially video lectures) can be scaled up. Teaching, assessing, and giving feedback on interpersonal lawyering skills (e.g., negotiation) is another matter.

On balance, I am excited for the conversation to be kicked off with this report. I look forward to seeing what various constituent groups—especially the courts—do with the recommendations and proposals.

New Article on the UBE

Professor and Director of Academic Support and Bar Passage Marsha Griggs (Washburn) has a new article on SSRN, Building a Better Bar Exam.  It is a well-written critique of the Uniform Bar Exam.  From the SSRN summary:

In the wake of declining bar passage rates and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, 36 U.S. jurisdictions have adopted the UBE. I predict that in a few years the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam is no longer the question. Now that the UBE has firmly taken root, the question to be answered is what can be done to make sure that the UBE does less harm than good?

This paper will, in four parts, examine the meteoric rise and spread of the UBE and the potential costs of its quick adoption. Part one will survey the gradual move away from state law exams to the jurisdictionally neutral UBE. Part two will identify correlations between recent changes to the multistate exams and a stark national decline in bar passage rates. Part three will address the limitations of the UBE, including the misleading promise of score portability and the consequences of forum shopping. Part four will propose additional measures that can coexist with the UBE to counterbalance its limitations to make a better bar exam for our students and the clients they will serve.

The UBE, while well-intentioned, has had unintended consequences.  In the Empire State, the New York State Bar Association—a voluntary membership organization, not a licensing or regulatory entity—is studying the impact of our state’s move to the UBE a few years ago.  As Patricia Salkin (Provost, Graduate and Professional Divisions, Touro) and I wrote about in the New York Law Journal, there was a precipitous decline in New York Practice enrollment statewide after New York’s “unique” civil procedure code, the Civil Practice Law and Rules, was no longer tested on the bar exam.  Students voted with their feet and flocked to other courses.  The NYSBA Task Force will attempt to assess whether there has been a decrease in lawyer competency following the adoption of the UBE.

In the meantime, Professor Griggs’ article makes a nice addition to the conversation around various aspects of the UBE.


Collecting Ultimate Bar Passage Data: Weighing the Costs and Benefits

The bar exam is an important outcome measure of whether our graduates are learning the basic competencies expected of new lawyers. As the ABA Managing Director reminded us in his memo of June 2015, however, it can no longer be the principal measure of student learning. Thus, we’re directed to look for other evidence of learning in our programs of legal education, hence the new focus on programmatic assessment.

Nevertheless, the ABA has wisely retained a minimal bar passage requirement in Standard 316, described in greater detail here. It is an important metric for prospective students. It is also an indicator of the quality of a school’s admission standards and, indirectly, its academic program. Indeed, it has been the subject of much debate recently. A proposal would have simplified the rule by requiring law schools to demonstrate that 75% of their graduates had passed a bar exam within two years of graduation. For a variety of reasons, the Council of the Section of Legal Education and Admission to the Bar recently decided to postpone moving forward with this change and leave Standard 316 written as-is.

With that background, Friday afternoon the ABA Associate Deans’ listserv received a message from William Adams, Deputy Managing Director of the ABA.  In it, he described a new process for collecting data on bar passage. A copy of the memo is on the ABA website. This change was authorized at the June 2017 meeting of the Council.  Readers may remember that the June meeting was the one that led to a major dust-up in legal education, when it was later revealed that the Council had voted to make substantial (and some would say, detrimental) changes to the Employment Questionnaire. When this came to light through the work of Jerry Organ and others, the ABA wisely backed off this proposed change and indicated it would further study the issue.

The change that the ABA approved in June and announced in greater detail on Friday is equally problematic.   Continue reading

The Bar Exam and Assessment

Recently, the Standards Review Committee of the ABA announced that it will be proposing a change to ABA Standard 316, which governs the minimum bar exam passage rate that a law school must show in order to remain accredited. As has been reported elsewhere, the current rule provides law schools with a number of ways to demonstrate compliance.  The proposed rule streamlines the path to compliance.  Under the proposal, 75% of a school’s graduates who took a bar exam must pass within two years of graduation.  First-time bar passage will still be reported on a school’s Standard 509 report.

It is important to put this proposal into a broader context:

  • A declining applicant pool has led some schools to lower admissions standards.
  • Critics have argued that some law schools are admitting students who have little to no hope of passing the bar exam, at least not on the first attempt.
  • There has been public bickering between some deans and the National Conference of Bar Examiners about who is to blame for recent declines in bar passage nationwide, with the former blaming the test, and the latter blaming law schools for lowering admissions standards.

I argue that, along the way, there has been a silent rethinking of how we view the bar exam. Many schools take great pride in their bar passage rates, as they reflect well on their programs of legal education.  In the past, a school’s bar exam passage rate was thought to be the measure of knowledge acquired in law school.  But there are a few reasons why the bar exam does not fully assess the learning that goes on in law school: Continue reading