by Sabrina DeFabritiis
Members of the legal community have long criticized the existing bar exam’s focus on rote memorization, arguing that the legal profession would be better served by an exam that tests lawyering skills. See Dick Dahl, Law schools begin preparing for new bar exam, Minnesota Lawyer (Nov. 2, 2023). After decades of little change, the National Conference of Bar Examiners (“NCBE”), responded in 2018 with the announcement of the NextGen bar exam (“NextGen”). This exam emphasizes such legal skills as client counseling, negotiation, research, and other problem-solving skills that are important to entry-level practice. See NCBE NextGen FAQs
Since this announcement, law schools across the country have been abuzz with questions about the new exam to best prepare their students for the changes to come. Law schools with a robust experiential curriculum including internships, clinical programs, legal writing, and research requirements believed their graduates would be well equipped for the NextGen. However, as NextGen began to take shape, faculty and experts held a spectrum of perspectives, with some finding NextGen similar to other types of standardized testing and others thinking it could bring “revolutionary change in legal education.” See Julianne Hill, Law schools examine pedagogy as NextGen bar exam looms, ABA J. (April 16, 2024). These differing perspectives capture the duality of NextGen. At least in its initial administrations, half of NextGen will be comprised of multiple-choice questions. The remaining half will be comprised of Integrated Question Sets and Performance Tasks (a shortened and evolved version of the Multistate Performance Test). To best prepare their graduates, law schools will have to elevate and integrate their skills training beyond the experiential curriculum. They will also need to use multimodal formative and summative assessments across the curriculum.
A growing number of states have adopted NextGen. With two years before its July 2026 debut, local schools anxiously await an announcement from the SJC whether Massachusetts will adopt the NextGen, and if so, when. As this year’s entering 1Ls may be among the first to take NextGen, many law schools are reevaluating their curriculum including teaching methods and assessments. The possibilities for change vary on a wide spectrum ranging from minimal changes to a complete overhaul of the admissions process and curriculum.
Admissions
As NextGen shifts the exam’s approach to testing lawyering skills and knowledge, law schools may decide to change the predictors of success used in admission decisions. Where ABA Standard 501(b) compels law schools to admit only students who appear capable of being admitted to the bar, schools may consider revising their admissions policies to be in compliance. Changing admission criteria before the NextGen is administered is an extreme approach because it will be difficult to determine what if any of the existing predictors remain relevant without some years of data. As a result of this challenge most schools will likely take a “wait and see” approach, waiting for the results of a few NextGen exams to analyze how much the existing admissions structure remains predictive.
Curricular Changes
Just as with admissions, curricular changes can vary. Most, including the exam creators, acknowledge that full curricular changes may not be necessary because NextGen will contain fewer topics to be tested. See NextGen Bar Exam: What to Know. Approximately half of the exam will be a mix of integrated questions and longer writing tasks. See Danette Waller McKinley and Beth E. Donahue, The Testing Column: Measuring Competence: Assessment of Knowledge and Skills on the Bar Exam, 92.3 The Bar Examiner (Fall 2023). All questions, including multiple choice questions will require examinees to demonstrate knowledge and apply lawyering skills to a situation similar to what they might see in their first few years of licensure. See Marilyn J. Wellington, The Bar Exam: Past, Present, and NextGen, 68.2 Bos. Bar J. (Spring 2024). NextGen focuses on testing skills that align with the weight such skills hold in the practice of law, which may necessitate a realignment of the law school curriculum. One such change would be to shift away from courses and assessments that primarily rely on memorizing complex legal rules and applying them to abstract fact patterns, to developing performance-based assessments that evaluate graduates’ ability to apply legal principles in real-world scenarios. This goal can be achieved in various ways, including:
- Investing in New Positions. Rather than adding to the already heavy workload that most Academic Support Professors carry, law schools are creating positions designed to focus on the bar exam. Positions such as Director of Bar Success not only serve to teach courses and support students during bar prep, they can also support faculty in creating and integrating NextGen assessments into their courses. They may also collaborate with commercial bar review companies during the transition to, and implementation of, NextGen.
- Creating New Classes. Many law schools currently offer upper-level courses that extend the runway for students to prepare for the bar exam. In addition to updating these courses, law schools can use this opportunity to think critically about their curriculum and integrate courses across all years that build on the foundational skills necessary for success in practice and on the bar exam. This may include a first-year class that introduces students to the practice of law. See Hill, supra (some first-year courses are taught collaboratively with multiple professors and librarians). A second-year course designed to help students understand the mindset of working with clients can build upon the foundation laid in a 1L course and further develop students’ problem-solving skills on their road to the bar exam and practice. As they begin to consider these changes, some schools have sought guidance from the Law School Admission Council (“LSAC”), which provides support to law schools throughout the admissions process and seeks to enhance student outcomes during law school. Schools across all four tiers have sought guidance from LSAC in adapting their curriculum and support systems to ensure that they make the necessary curricular pivots to ensure that their graduates are well equipped to pass the NextGen bar exam. For those that plan to make no changes, they may rely on commercial bar review companies to introduce and teach graduates the foundational skills necessary for success, which may be a missed opportunity to ensure that they are providing their graduates with the training and skills necessary for success.
- Revising the Guided Curriculum. Some law schools identify at risk students based on their first-year GPA and require them to take certain courses prior to graduation. Historically many of these courses may have included areas of law tested on the bar exam. The NextGen bar exam will test fewer topics and more skill. Accordingly, the guided curriculum courses may require updating to achieve the desired goal of best preparing at risk students.
- Developing New Assessments. Because NextGen will evaluate graduates’ ability to apply law using real-world approaches, new assessments of student achievement and test modalities are needed. Traditional methods of formative and summative assessments, such as written exams, may need to be supplemented or replaced by more dynamic methods that better reflect the skills and competencies required for success. Professors can make slight adjustments to their existing classes, tests, and exams to help introduce these assessment methods to their students. One such change would be to incorporate multiple-choice, multiple-select, and short answer questions in an exam that was previously just essay based. Another change may be to give a partial open-book exams aligning with the NextGen content scope outlines which will require examinees to have in-depth and independent knowledge of some topics and limited knowledge of others with the ability to navigate provided legal resources. Professors across the curriculum can also incorporate closed universe writing assignments, akin to the NextGen Performance Test, to help develop students’ critical reading and writing skill. In addition to evolving question formats the exam itself is also changing from a pencil and paper scantron format to an all computer-based exam. Giving fully computer-based exams will allow students to develop the skills necessary to read and annotate questions on a screen rather than relying on pencil and paper.
Regardless of the degree of change that is implemented, law schools should take this opportunity to reexamine their curricular goals and outcomes to ensure that their students have the knowledge and skills necessary for success on the NextGen bar exam, as well as a successful career in the legal profession.
Sabrina DeFabritiis is a Professor of Legal Writing at Suffolk University Law School, where she is also the Law School’s Director of Bar Programs and Initiatives.
