NCBE Publishes Content Scope for NextGen Bar Exam
MADISON, WISCONSIN, May 25, 2023—The National Conference of Bar Examiners (NCBE), which develops bar exam content for 54 US jurisdictions, has published the content scope for the NextGen bar exam, which is set to launch in 2026. The content scope document outlines the breadth of material to be covered on the new exam in eight areas of legal knowledge and seven categories of practical skills and abilities.
The publication of the content scope marks the latest milestone in the development of the new bar exam, which will be focused on testing a wider array of foundational lawyering skills in the context of substantive legal knowledge currently tested on the bar exam. In addition to traditional multiple-choice questions and longer written analyses, the exam is expected to include new integrated sets of questions—combinations of short-answer and multiple-choice questions in scenarios involving complex legal issues, drawn from multiple subject areas, that require applicants to demonstrate both in-depth knowledge of the law and skill in a range of essential attorney functions.
NCBE President Judith Gundersen commented, “Over the years, the bar exam has evolved to meet the changing needs of the legal profession, ensuring that it remains aligned with what new lawyers need to know. This new exam, which is being developed with input from practicing attorneys, legal educators, members of the judiciary, and bar admission professionals from across the country, reflects the dynamism and innovation found in law firms, in the courts, and in law schools today. The NextGen exam will help align legal education, licensure, and practice, all in service to clients and their needs, for decades to come.”
“The content scope outlines are essential tools for law schools as they matriculate the students who will take the new bar exam,” said Hon. Cynthia L. Martin, who sits on the Missouri Court of Appeals, Western District, and chairs the committee charged with overseeing development of the new exam. “Many of the eight areas of law that make up the Foundational Concepts and Principles are taught in the first two years of law school, and faculty can use these outlines to inform their curriculum starting this fall.”
On the basis of recommendations set forth by a 21-member content scope committee following NCBE’s three-year study of the bar exam, examinees will be required to have in-depth knowledge of certain topics within each subject tested on the exam. For some topics within each subject, examinees will be expected to have a more general familiarity that requires them to be able to recognize that the topic is at issue and to work with any legal resources that may be provided. For example, within the area of constitutional law, examinees will be expected to have in-depth knowledge of First Amendment freedoms such as regulation of protected and unprotected expression, but a more general understanding of prior restraint, vagueness, and overbreadth.
The eight subjects to be tested on the new exam are:
- Business associations and relationships (including agency)
- Civil procedure
- Constitutional law (including proceedings before administrative agencies)
- Contracts (including Article 2 of the Uniform Commercial Code)
- Criminal law and constitutional protections of accused persons
- Real property
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, as in the current Multistate Performance Test.
A significant change for the new exam will be the expansion of skills testing. The current bar exam already tests important lawyering skills in legal writing, issue spotting, and legal analysis. The skills to be assessed on the new bar exam have been expanded to include legal research, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management.
In considering the breadth of topics to be covered within each concept and skill area, the content scope committee primarily considered the following three factors:
Frequency: How often is a newly licensed lawyer likely to encounter the topic in general entry-level practice (loosely defined as solo practice or working at a full-service law firm)?
Universality: How likely is a newly licensed lawyer to encounter the topic in more specialized types of entry-level practice?
Risk: How likely is it that there will be serious consequences if a newly licensed lawyer does not have any knowledge of the topic when it arises?
In addition to the factors listed above, for the subject of constitutional law the content scope committee also considered lawyers’ roles as custodians of the US Constitution.
In considering at what depth the topics should be tested, the content scope committee focused on how much detail a newly licensed lawyer should recall about each topic, without research, to provide minimally competent legal services, primarily considering the following three factors:
Complexity: How complex or nuanced is the legal doctrine in this topic?
Context: How quickly must a lawyer act when this topic arises (i.e., would a newly licensed lawyer typically have time to conduct research before providing counsel)?
Stability/Universality: Is the doctrine relatively stable or in flux? Is there a clear majority approach among the states (or circuits)?
Preliminary content scope outlines were published in early 2022. A public comment period, during which members of the legal community were invited to submit comments on the preliminary outlines, drew responses from nearly 400 stakeholders, including law school deans, faculty, and administrators; practicing attorneys; judges and justices; law students; and bar examiners and admissions staff.
The updated version of the outlines reflect a number of changes compared to the version published last year. According to Beth Donahue, Director of Content Innovation and Education Relations in Assessment and Research at NCBE, “Some topics have been added to or removed from the subject matter outlines, and more detailed annotations have been created for many topics. In addition, several subject matter outlines have been reorganized to provide greater transparency about which topics and subtopics will be covered.”
Additional changes are expected for the list of tasks in the foundational skills outline; the finalized version of the task list will be available in 2024.
The NextGen bar exam is being developed utilizing a rigorous process that includes multiple stages of pilot and field testing and statistical analysis to ensure that all test takers have a fair opportunity to demonstrate their knowledge and skills. Pilot testing for the new exam is well underway; over 2,500 law students and recent graduates have answered draft questions in two- to three-hour testing sessions. This marks the first of multiple stages of research testing that will be performed over the next few years as part of the NextGen exam development process. Seventy law schools from across the country have already participated in the initial rounds of pilot testing, and more than 90 law schools have volunteered to participate in one or more stages of the research testing being performed by NCBE.
The changes being made to the bar exam are the result of a rigorous study that included a nationwide practice analysis survey, which drew responses from nearly 15,000 practicing lawyers and members of the legal academy, identifying the knowledge and skills that are necessary for effective practice by newly licensed attorneys. In addition to the practice analysis survey, the study included listening sessions with stakeholders and collaborative input from committees composed of judges and justices, legal educators, bar examiners, and admissions staff, about possible changes to the bar exam.
About the National Conference of Bar Examiners
The National Conference of Bar Examiners (NCBE), headquartered in Madison, Wisconsin, is a not-for-profit corporation founded in 1931. NCBE promotes fairness, integrity, and best practices in bar admissions for the benefit and protection of the public, in pursuit of its vision of a competent, ethical, and diverse legal profession. Best known for developing bar exam content used by 54 US jurisdictions, NCBE serves admission authorities, courts, the legal education community, and candidates by providing high-quality assessment products, services, and research; character investigations; and informational and educational resources and programs. In 2026, NCBE will launch the next generation of the bar examination, ensuring that the exam continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing profession. For more information, visit the NCBE website at https://www.ncbex.org.
About the Next Generation of the Bar Exam
In 2018, the National Conference of Bar Examiners (NCBE) appointed a Testing Task Force charged with undertaking a three-year study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing profession. In January 2021, NCBE’s Board of Trustees approved the Testing Task Force’s recommendations and began development of the next generation bar exam, with a timeline of five years for implementation. The new exam will place greater emphasis on assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform. NCBE is committed to ensuring a systematic, transparent, and collaborative implementation process, informed by input from and participation by stakeholders, and guided by best practices and the professional standards for high-stakes testing. For more information, visit https://nextgenbarexam.ncbex.org/.