Thinking About/Worrying About the NextGen Bar

When it comes to the new bar exam, coming to a state near you beginning in 2026, I am still at the bottom of the learning curve.  Oklahoma is planning to administer this version of the exam in 2027, so my current 1Ls will be the first group of students that I have taught who will have to take it. Any of my past students who cannot pass the bar exam before then will also face an exam for which I fear my teaching did not ideally prepare them.

I have long striven to design my assessments to mirror what students will face on the bar exam. My formative assessments combine multiple choice questions to familiarize students with the way fact patterns and distractors work on the MBE with short answer questions to build issue-spotting and IRAC skills. For those of you unfamiliar, IRAC stands for Issue, Rule, Application, Conclusion, which, with some variation, is the format that bar exam answers take. My final exams include essays modeled on bar exam essays. They are designed to have one or two major issues, with perhaps some minor issues layered within them. 

But the NextGen bar expects students to have developed different skills. They need to do more than just spot issues in a fact pattern; they need to take facts as presented by a client and think about what follow-up questions they need to ask. They need to think about not just what they know from the materials but what they need to know in order to proceed. It is not that I do not think our students get training that will help them further develop those skills in their 2L and 3L years and in their summer experiences. Rather, the problem is that pretty much all of the ways in which I assess my 1Ls no longer prepare them for parts of the NextGen bar. I would like to make my assessments more like those on the NextGen bar, and that is my project for next semester. It’s a tough assignment, because there are not yet very many exemplars of what the NextGen bar will look like.

I am inclined to be skeptical of a bar exam that makes me do all of this work, but there is an aspect of the NextGen roll-out that makes me more skeptical still. I have now heard from two reliable sources the National Council of Bar Examiners (NCBE), the good people behind the new bar exam, are administering tests to students who recently took the bar. They will then compare the scores of the students on the NextGen exam to their scores on the current bar exam. They will set the pass score for the NextGen exam at a level such that those who passed the current bar will also pass NextGen.

This makes no sense to me. What’s the point of changing the exam, if the people who do well enough to pass the old exam also do well enough to pass the new exam? If that is so, the exam is still just a general intelligence quiz, and the new exam serves no purpose not already served by the existing exam.  That is, I thought the problem with all hitherto existing bar exams is that they do test the sorts of skills that are most relevant to practice. The aim of the new bar, one would think, would be reward the students who have the kind of skills that real attorneys need, and that might require a different kind of intelligence. We should want a difference in outcomes on the new bar. It should reward a different kind of smarts, perhaps to some extent at the expense of those with the more traditional skill set, perhaps just in the interests of broadening our assumptions about the kinds of people who can become lawyers.

My limited experience with the NextGen bar suggests that testing in a new way is challenging.  The NCBE circulated some practice questions, and I tried my hand at the problems. The MBE-type questions seem pretty-much unchanged from earlier iterations of the bar exam. The new “integrated question set” portion of the exam constitutes the real innovation here. Some of the questions required the test-taker to imagine what arguments a party in breach might make to avoid liability. I assume the fact patterns will get better, but in the fact pattern I saw, the party in breach had no strong arguments. They had clearly breached and no excuses or defenses applied, so it was matter of choosing the least bad argument. Counseling the client to settle was not an option. To my surprise, my answers were the “right” answers, I think in the sense that they were the least wrong answers. I’m not sure why testing students’ ability to find the least bad arguments is a worthwhile goal. You can have a look at more sample questions here (I haven’t worked through these yet).

I am relieved that the multiple-choice style questions on the NextGen bar look a lot of like the old MBE questions. I can’t say that I understand the decision to cut back so radically on essay writing. It is hard for me to imagine that the practice of law has now become divorced from the need for strong writing skills to the extent that showing a basic competence to write clearly in extended form is no longer considered a qualification that the bar exam needs to test.

Perhaps the goal of the NCBE is not to change the people who can become lawyers. Perhaps the goal is to change legal education, to the extent that we in the academy are inclined to teach to the the test. Some law professors clearly are not, but we in the Other Legal Academy don’t all have that luxury. I admire the aspect of the integrated-question-set portion of the NextGen bar that resists the siloing effects of law school, in which students, at least in the first year, learn subjects in isolation. The practice problem I did was a contracts fact pattern, but the questions also related to civil procedure, agency, and legal ethics. Civil procedure and agency matters come up from time to time in my first-year contracts class, but I don’t have the time or expertise to perform deep-dives into that subject matter. I think that’s fine. Legal education already does a pretty good job, I think, of overcoming siloing in second- and third-year doctrinal courses, and in the experiential learning curriculum.

When I was an attorney, I focused on writing dispositive motions and appellate briefs. My writing experience made it easy for me to train students to write bar essays. I have since learned how to write multiple-choice exams, but that too is about writing fact patterns that require the students to issue spot and apply legal rules to unique facts.  Like many law professors, I clerked for an appellate judge and I worked for a Big Law firm.

To the extent that I interacted with clients, I was talking with corporate counsel. I didn’t have to help them piece together their cause of action. And I never did serious transactional work, so I was never involved in a negotiation or a client intake interview. I can learn how to teach the skills that the NextGen bar tests, but it is not a natural fit for me. If law schools are paying attention to what the NCBE is looking for from our students, it could affect hiring priorities. Most schools focus on hiring people with LL.Ms and Ph.D.’s or J.S.D.s who have won prestigious visiting assistant professorships where they taught a reduced load while focusing on their research. Hiring such people is consistent with having faculty members who will contribute to legal scholarship and to law reform projects. However, at least at law schools like mine, where students are not guaranteed to pass the bar unaided, should we have people who are more practice-focused teaching the bar-related courses?

Although the new bar exam will affect our students, I have a sense that very few law professors have contributed to its composition. Yes, our faculty members responsible for bar preparation are engaged with the process, but for the most part, they seem to be passive spectators begging the NCBE for more information about the new exam so that they can strategize about how to prepare students for it. There have been bewildering releases of information regarding concepts covered and the extent they will be covered. Given its lack of a ground game, the NCBE should not be surprised if law professors either think that the new bar exam is not their concern or react to it with hostility. The NCBE may be indifferent to law professors’ response to the exam, but really the professoriate and the NCBE should be coordinating their efforts to help our students succeed.