A new bar exam, slated to debut in 2026, will test more skills and fewer subjects than its current incarnation. The legal community is now invited to comment on preliminary outlines of exam content that, once finalized, will guide future test takers, law schools, and exam drafters as the new exam approaches. The bar exam is the test of legal skills and knowledge that most US attorneys must pass prior to licensure.
The National Conference of Bar Examiners (NCBE), which develops bar exam content for 54 US jurisdictions, has published the preliminary Content Scope Outlines for the next generation of the bar exam on its website. The outlines focus on the breadth of material to be covered on the new exam in eight areas of legal knowledge, known as Foundational Concepts and Principles (FC&P), and seven categories of practical skills and abilities, known as Foundational Skills (FS). A final version of the outlines will be published after the public comment period.
The work being done to develop and launch the next generation bar exam is a five-year process, based on input from legal educators, practicing attorneys, and members of the bar admissions community, that will deliver a reimagined bar exam by 2026.
The most noticeable change to the content planned for the new exam is the number of subjects tested, which will decrease from 12 to 8: civil procedure, contract law (including Article 2 of the Uniform Commercial Code), evidence, torts, business associations (including agency), constitutional law (including proceedings before administrative agencies), criminal law and constitutional protections of accused persons, and real property. The new exam will no longer test conflict of laws, family law, trusts and estates, or secured transactions, and will test some legal concepts more deeply than others.
The proposed subject matter outlines reflect the work of NCBE’s Content Scope Committee, a group of 21 dedicated legal professionals, including legal educators, law school deans, practicing attorneys, and bar examiners. In considering the breadth of topics to be covered within each subject, the Content Scope Committee primarily considered the following three factors:
- Frequency: How often is a newly licensed lawyer (defined as one who has practiced for fewer than three years) 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?
The most significant change to the exam content, however, is the planned expansion of the skills to be tested. “Stakeholders have indicated that the bar exam should test fewer subjects in order to focus on testing more lawyering skills,” said NCBE President Judith Gundersen. “The new bar exam will be administered on computers, which allows us to build more dynamic question sets and test skills beyond those included on the current exam. The addition of these essential skills is one of the most exciting and challenging changes planned for the new bar exam.”
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. The expansion of skills testing will require development of new question types; as a result, the current bar exam format will be retired in the coming years, and a new format, featuring integrated sets of questions (likely a combination of short-answer, multiple-choice, and longer legal drafting questions) is in development.
The publication of the outlines is the latest milestone in a process that began in 2018, when NCBE embarked on a multiyear study of the current bar exam. During that study, nearly 15,000 practicing lawyers and stakeholders from bar admission agencies and the legal academy responded to a nationwide practice analysis survey to identify the knowledge and skills that are necessary for effective practice by newly licensed attorneys.
“Members of the legal community from all US jurisdictions participated, making this a truly nationwide practice analysis survey of the opinions of the US legal community,” 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.
In addition to the practice analysis survey, the study included listening sessions with stakeholders and collaborative input from committees composed of bar examiners and legal educators about possible changes to the bar exam. The study was built on the premise that “all options were on the table,” said Martin. “Participants were given free rein to reimagine the bar exam to best reflect the knowledge, skills, and abilities needed by new attorneys in a changing profession.” Notably, said Martin, “among several independent reports on the content best tested on the exam, there was significant consensus, regardless of the agency conducting the study.”
NCBE is asking members of the US legal community to review and comment on the Content Scope Outlines. The comment period will be open until April 18. To view the outlines and submit comments, visit NCBE’s next generation bar exam website.