NextGen Bar Exam Set to Change Attorney Licensing

NextGen Bar Exam Set to Change the Future of Attorney Licensing

In 2021, the National Conference of Bar Examiners (NCBE) began the process of creating the NextGen Bar Exam.  The NextGen Bar Exam will eventually replace the Uniform Bar Exam in an effort to make the traditional licensure test more skills-based.

Calling it “the Bar Exam of the future,” the NCBE hopes to revamp the attorney licensing exam process to one that focuses on knowledge and practical skills rather than on rote memorization. Law students will be able to demonstrate their ability to analyze and apply the law to real world scenarios when taking the NextGen Bar Exam. The NextGen Bar Exam will assess foundational skills such as negotiation, client counseling, and client management.  The exam will also include law-based questions on subject matter such as contracts, criminal law, real property, and torts. While there is certainly more information that will be forthcoming from the NCBE regarding the NextGen Bar Exam, this post will focus on what the NCBE has released thusfar.

NextGen Bar Exam Set to Change the Future of Attorney Licensing

History of the Bar Examination

The state bar system began in 1880 when New Hampshire created a central board of bar examiners. Many states followed suit and by 1931, almost all states had a statewide licensure board. The National Conference of Bar Examiners was founded that same year in order to help the states improve their approach to the bar exam and to provide services related to character and fitness investigations.

By 1958, the NCBE developed the National Code for Recommended Standards for Bar Examiners. The state jurisdictions continued to raise their standards in order to offer rigor in licensing and consistency in administration. By 1969, the NCBE established a committee to study the bar exam process. The committee discussed the establishment of a uniform bar exam.  The purpose was to ease the grading process for states that had large numbers of candidates taking the bar exam. This led to the development of the modern format of the bar exam in 1972: the Multistate Bar Exam (MBE).  The majority of jurisdictions continue to use the MBE as a component of the bar exam today.

Initially, the MBE tested six areas of the law: torts, real property, criminal law and procedure, constitutional law, and evidence. While the 200-question multiple choice format offered objectivity, it received criticism that law students focus on memorizing legal subject matter rather than building real world legal skills. The Multistate Professional Responsibility Exam (MPRE) was added as a requirement in 1980, first focusing on the American Bar Association (ABA) Model Code of Professional Responsibility, and then later, the ABA Model Rules of Professional Conduct.

In 1988, the NCBE added the Multistate Essay Examination (MEE) to the mix. The MEE first contained six questions including the six MBE subjects plus civil procedure, corporations, and wills, estates, and trusts. Over time, the MEE incorporated new subjects including conflict of laws, commercial transactions, and family law. Continued changes were implemented including the number of questions and organization of subjects within essay questions. In 2011, the first uniform bar exam developed by the NCBE was administered in two jurisdictions.

As of 2023, forty-two jurisdictions, including the United States Virgin Islands, have adopted the Uniform Bar Exam. Currently, the Uniform Bar Exam is a two-day exam that consists of three parts. These include the Multistate Bar Exam, the Multistate Essay Exam, and the Multistate Performance Test (MPT). The MPT requires examinees to complete legal tasks such as writing a persuasive brief or an objective memo.

This leads us to the next step in the NCBE’s plan to continue to improve the bar exam process: the NextGen Bar Exam. While previous exams required rigorous assessment of legal knowledge, they did not necessarily test the transferable skills necessary to practice as an attorney.  The NCBE began working to create a licensure exam that would assess both skills and knowledge.

Testing Task Force Research and Recommendations

Beginning in January of 2018, the NCBE established a Testing Task Force (TTF) to identify and study “the legal knowledge and skills entry-level attorneys are expected to have or learn within the first three years of practice.” The TTF gathered input from the legal field by hosting listening sessions, conducting scientific surveys of diverse populations, and working with focus groups to determine how identified competencies should be assessed on a bar examination. The TTF released a final report making recommendations, and the NCBE ultimately approved the report. Overwhelmingly, the task force recognized that the exam should adjust its focus to assess the transferable skills necessary to practice as an attorney.

The NextGen Bar Exam will focus on eight foundational principles and concepts including the following: civil procedure, contracts, evidence, torts, business associations, constitutional law, criminal law and real property. Further, the exam will focus on the following foundational skills:

• Legal research,
• Legal writing,
• Issue spotting and analysis,
• Investigation and evaluation,
• Client counseling and advising,
• Negotiation and dispute resolution, and
• Client relationship and management.

The goal is for the new bar exam to better balance the skills attorneys need to use to maintain a successful practice with legal knowledge. Due to many law schools starting to incorporate clinical legal programs, legal writing, advocacy, and alternative dispute resolution skills into law school curriculum, the NCBE plans to incorporate these types of experiences into its assessment.

Development and Implementation Period

The next step in the creation of the NextGen Bar Exam involved organizing a content scope committee and holding a public comment process that ended in April of 2022. The committee developed content scope outlines that would act as the blueprint for the development of the exam.  Once the recommendations were approved, the NCBE implemented a project timeline that would guide the NextGen Bar Exam from the development period to eventual administration of the exam. Currently, the focus is on pilot testing of draft questions and the publication of the final Content Scope Outlines.

In 2023-2024, the NCBE will begin field testing of operational exam items. This period will include analysis and review to ensure fairness for diverse populations and access to candidates with disabilities. Additionally, the NCBE will begin to assist jurisdictions with amendments to rules, statues, and policies upon request. Another focus during this time period is to publish sample test items and study aid materials as they become available. The NCBE plans on publishing final exam design and test content specifications in 2024. If things progress as planned, a prototype exam will be available sometime in 2024-2025. The results of the prototype exam will lead to standard-setting recommendations.  These recommendations will assist jurisdictions in setting passing scores.  Finally, the first administration of the NextGen Bar Exam is set to occur in July of 2026. 

Future Rollout Process

To ensure a smooth transition from the current Uniform Bar Exam to the NextGen Bar, the graduated rollout period will begin in July 2026. Some jurisdictions will offer the NextGen Bar exam, while others will continue to offer the Uniform Bar Exam. Additionally, the NextGen Bar Exam will be offered twice a year in February and July and will be conducted in an in-person testing environment. While the administration and timing of the exam is similar to the Uniform Bar Exam, the NCBE ensures that the subject matter and format of the NextGen Bar Exam will be different. As discussed above, candidates will be assessed on skills such as negotiation, client counseling, and legal writing. The content specifications for the assessed Foundational Skills will provide guidance regarding the scope of the assessment for each skill.

At this time, we do not know which jurisdictions will be the first to offer the NextGen Bar Exam. However, candidates can check the NCBE’s webpage for latest news and updates. Candidates should also keep an eye on their local jurisdictions.  They will also be announcing their plans for incorporating the NextGen Bar Exam.

What’s Next?

Whether you are a future bar exam candidate, professor of law, or are considering law school in the future, you will want to follow along as the NextGen Bar Exam comes to fruition. The NCBE has published a comprehensive website to educate and inform interested parties throughout the implementation period.

Exam Resources include:

• Webcasts
• A detailed Q&A
• Reports including the TTF recommendations and content outlines
• Email subscription service for updates

As this process unfolds, JD Advising will be there every step of the way and ready with a NextGen Bar Exam preparation course. Of course, we will continue to offer our Uniform Bar Exam Course for those jurisdictions who do not adopt the NextGen Bar Exam right away.

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