The next generation of the bar exam is on the horizon after a long process initiated by the National Conference of Bar Examiners, the organization tasked with developing and producing the keyholder for the law profession.
The new exam — the NextGen Bar Exam — came out of an initiative from the NCBE’s Board of Trustees, said Judith Gundersen, the president and CEO of the NCBE. Gundersen said the organization wanted to ensure the exam reflected the entry-level practice for lawyers.
These changes follow several states and organizations that have called for and begun to implement changes to the exam — including Colorado.
Colorado recently lowered its minimum passing score for the Uniform Bar Examination from 276 to 270, with the change going into effect in 2023. In the announcement, the Colorado Supreme Court noted several changes coming with the NextGen Exam.
Starting with a study commenced in 2018 with listening sessions, practice analysis surveys and input from across the legal field, the NCBE testing task force came up with the recommendations to apply an integrated test, changing scoring and content, while establishing foundational skills and concepts.
The biggest adjustments coming to the NextGen Bar Exam, Gundersen said, are the change in subject matter, increase in skills testing, a new integrated exam and the move from paper and pencil to technology-based test-taking.
The new exam will test eight foundational concepts and principles and seven foundational skills. The eight concepts and principles are: civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law and real property.
The seven foundational skills are: legal research, legal writing, issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution and client relationship and management.
Gundersen said the exam will cut back on the subject matter tested and will test less broadly on those subjects. For example, according to the Content Scope Outlines, which outlines the scope of the content to be tested, testing on criminal law will include topics like general principles (defenses, jurisdiction, etc.), statutory crimes, inchoate crimes, parties and constitutional protection of accused persons.
Several skills are already included on the bar exam, Gundersen said, like legal writing and legal analysis. The new exam will test more items related to client relationship management skills, dispute resolution and investigation.
The new exam will also be integrated. Rather than being broken down into three component parts, the MBE, the MPT and the MEE, the NextGen Bar Exam will have segments but not discrete parts, Gundersen said.
The test will be administered on personal laptops as well, rather than on paper with pencil.
Gunderson said in the development of the exam, the NCBE has met with around 24 jurisdictions — including meeting with Colorado in June. The NCBE may meet with Colorado again if the court invites them back, Gunderson added, because they have more information on the exam than before.
The Colorado Supreme Court plans to invite public input on minimum competency for the Colorado bar and will announce details when the NCBE has defined the timing and content of the NextGen Exam, according to a press release.
Gundersen said in the process of developing the new exam, there have been “plenty of questions,” but they’ve seen plenty of “interest and enthusiasm” from state courts and boards of admissions.
“We can’t snap our fingers and have a state say, ‘Oh, we’re gonna do the NextGen Exam,’” Gundersen said. “It’s up to the Colorado Supreme Court, it’s up to the Illinois Supreme Court and they’re the people who are going to make these decisions, and so to see the interest and enthusiasm has actually been really energizing and exciting.”
One critique the bar exam has faced is the equity involved with several aspects of the test, including cost. Gundersen said while the NCBE has invested in resources to make changes to the bar exam, these costs won’t be passed down to examinees or courts.
While the NCBE hasn’t set the cost of the exam, Gundersen said, they’re “very cognizant” of making sure the exam remains affordable.
Gundersen added they’re taking some steps to ensure equitability for the exam, including pilot testing with changes like testing with and without resources and ensuring that examinees know the depth of what will be tested.
The exam will have a phased rollout, with it set to debut in July 2026. Gundersen said there might be a period of time where there will be two Uniform Bar Exams occurring at once, but many states have accepted that there will be a transition period.
According to their implementation timeline, throughout this year and 2023, the NCBE will develop scoring and grading processes, conduct pilot testing of prototype items and publish sample items.
In the meantime, Gundersen said the law community should have confidence the exam will be fair and reliable, and those aspects that boards and courts have come to expect will still be delivered.
“[The exam will] just be delivered in a different way that is more realistic,” Gundersen said, “and we think more representative of what the practice of law looks like in the 2020s and beyond.”