The National Conference of Bar Examiners (NCBE) has approved the NCBE Testing Task Force’s recommendations for the changes to be made to the Bar Exam. These recommendations were announced by the Task Force earlier this month and are based on a three-year empirical study conducted by the task force in three phases. The NCBE anticipates that the implementation of the new generation bar exam will take four to five years. While the NCBE has released some details about the changes that will be made to the existing pattern of the exam, many of these details are unclear and it seems like the niceties will be developed, tested, and adopted by the NCBE over time.
Here are some of the major changes that have been approved by the NCBE based on the Task Force’s report:
Delivery Mode of the New Bar Exam
The exam will be computed-based and will be conducted either at test-centers managed by vendors or on examinees’ laptops at jurisdiction-managed sites.
Structure and Format of the New Bar Exam
The exam will be based on an integrated format with a mix of item types and formats to test candidates’ knowledge and skills holistically. The integrated format will use stand-alone questions and item sets. A combination of item formats including short-answer, selected-response, and extended constructed-response items will also be used. The integrated format intends to test the candidates on real-world types of legal problems that newly licensed lawyers may encounter in their practice.
Scoring the New Bar Exam Results
A compensatory scoring model will be adopted to produce a single combined score for admission decisions. This model will reflect the candidates’ overall proficiency and will allow areas of strength to compensate for the candidates’ areas of weakness. Multiple-choice items and other item types that can be assessed through a machine-based system will be scored by the NCBE, and constructed-response questions will be graded by the respective jurisdictions.
Frequency of the New Bar Exam
The new bar exam will be offered twice a year.
Content of the New Bar Exam
Foundational concepts and principles and foundational skills will be tested in the new bar exam. These will include:
Foundational concepts and principles:
- Civil Procedure (including constitutional protections and proceedings before administrative agencies.
- Contract Law (including Art. 2 of the UCC)
- Evidence
- Torts
- Business Associations (including Agency)
- Constitutional Law (excluding principles covered under Civil Procedure and Criminal Law)
- Criminal Law and Constitutional Protections Impacting Criminal Proceedings (excluding coverage of criminal procedure beyond constitutional protections)
- Real Property
Foundational skills
- Legal Research
- Legal Writing
- Issue Spotting and Analysis
- Investigation and Evaluation
- Client Counseling and Advising
- Negotiation and Dispute Resolution
- Client Relationship and Management
Timing of the New Bar Exam
The exam will be a single-event, summative exam. It will be conducted at or near the point of licensure. The NCBE has specified that jurisdictions could still permit candidates to appear in their final semester of law school, as is presently the norm. Further, the length of the exam may be reduced, if the necessary reliability and validity of scores can be maintained.
Next Steps in the Implementation Process
During the next four to five years, the NCBE anticipates undertaking the following steps towards the implementation of the new bar examination:
- Developing content specifications identifying the scope of coverage;
- Drafting new types of questions for integrated testing of knowledge and skills;
- Ensuring accessibility for candidates with disabilities;
- Field-testing new item formats and new exam content;
- Conducting analyses and review to ensure fairness for diverse populations of candidates;
- Evaluating options for in-person computer delivery of the exam;
- Establishing scoring processes and psychometric methods for equating/scaling scores;
- Developing test administration policies and procedures;
- Assisting jurisdictions to prepare and supporting them in activities such as setting passing score requirements and amending rules to align with changes to the exam; and
- Providing study materials and sample test questions to help candidates prepare.
Other Clarifications Issued by the NCBE:
The NCBE has issued answers to some common queries raised by the stakeholders:
- Emphasizing the importance of professional responsibility, the NCBE has decided that the Multistate Professional Responsibility Exam (MPRE) will remain as a separate standalone exam.
- The NCBE has clarified that in-person examination is the best way to ensure uniform testing conditions for all candidates and remote testing is currently not on the cards.
- To ensure accessibility for candidates with disabilities under the Americans with Disabilities Act Amendments Act, non-standard test materials will be provided. The NCBE has also promised to ensure fairness in assessment for all candidates regardless of their gender, race, or ethnicity.
- The NCBE has hinted in favor of score portability across all jurisdictions.
- Jurisdictions will have to adopt a new score scale to adjust to the new format of the integrated bar exam.
- The new bar exam will not be an open-book test. It might contain some relevant legal resources required to answer any item set.
- The new bar exam will not test subjects of Family Law, Trusts and Estates, Conflict of Laws, and Secured Transactions.
- The NCBE hopes to identify the scope of coverage specifying the test content by late fall 2021.
- The closed set of legal resources that will be provided in the new bar exam might include statutes, cases, and rules. The NCBE intends to lay more emphasis on testing the candidates’ skills, such as interpreting and applying the law rather than testing their ability to commit to memory.
- Foundational skills such as negotiation, client counseling, and other performance-type skills will be assessed using uniform text or video-based scenarios.
Thus, even though the NCBE has approved the general outlines of changes recommended by the Task Force, the specifics, substance, and nitty-gritty of the new exam are yet to be developed, tested, and adopted by the NCBE.
Amit Schlesinger, Executive Director of Legal Programs at Kaplan said, “It’s important to note that these changes are still several years away from being implemented, so this won’t affect any current law school students or even students who are entering law school this fall.” He further added, “Overall, we are supportive of the NCBE’s changes to the exam, which aim to better prepare graduated students as they venture into the legal profession. It seems that the new exam will test law school graduates on the skills needed to be successful practicing attorneys, based on potential scenarios they’ll face in the workplace. That means making the exam a lot less theoretical and a lot more practical than it is now. These changes may also have a profound effect on legal education, particularly for those law schools that teach to the current test. Curricula changes might be on the way because of this, although that is largely regulated by the American Bar Association.”
The suggested changes to the bar exam will be the biggest overhaul to the bar exam since 1972. However, the roll-out is expected to take a few years and it will not impact current law students.