Editorial Advisory Board: NextGen Bar Exam | Rare Techy
Starting next fall, every student entering Maryland law schools will likely take the Next Generation Bar Exam after graduation. In fact, there are some students whose future licensure may be determined based on their performance on the NextGen exam.
Deans and faculty at both law schools began reexamining curricular offerings and considering changes to prepare their students for the upcoming exam. Recruiting partners may want to adjust their expectations for prospective candidates by focusing more on legal skills than hiring knowledge. Law firms may want to rethink their orientation programs for newly admitted lawyers, perhaps exposing them to more challenging work immediately. Here’s why:
According to the National Conference of Bar Examiners, which creates the uniform bar exam now in use, the Next Gen exam is designed to test breadth and depth within the topics covered, so less memorization of legal theory is required. At the same time, more emphasis will be placed on advocacy skills.
NCBE promises to retain UBE’s values of fairness, accessibility, affordability, and score portability, but the content will focus on eight core subjects and seven core competencies.
Specifically, the topics examined will be limited to civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law, and real property. Family law, secured transactions, trusts and estates are no longer probated.
Many topics that remain within topics will be avoided. For example, knowledge of the elements of common law offenses will not be tested; Instead, examiners will interpret statutory definitions of crimes. Torts questions no longer include contributory negligence, defamation, or invasion of privacy. The rule against stability will eventually go away.
Skills coverage will include legal research and writing, issue spotting and analysis, investigation and assessment, client counseling and advice, negotiation and dispute resolution, and client relations and management.
Overall, NCBE will determine the breadth of coverage by frequency – topics that come up often in entry-level practice; Universality – problems common to multiple practice areas; and risk – topics that pose a risk of abuse or poor client outcomes if the practitioner is ignorant of them.
NCBE has offered some hypothetical questions to illustrate how the testing will work.
Examinees may be given an opening scenario that raises issues and evidence of criminal law, a police report, a statute governing assault and battery, and a short excerpt from a case interpreting the statute.
They might be asked which fact in the police report would be most helpful in proving the “knowing” element, whether the police officer would be allowed to testify about the victim’s account of the incident in his own words, or what three ways. Follow up to collect other evidence relevant to the topic of “great bodily harm”.
This scenario may continue with new material, such as a transcript of the law clerk’s interview with a witness, facts including the resolution of several outstanding issues. Examiners may be asked to review the transcript and identify two mistakes made by the law clerk, or raise concerns about a prospective plea deal offered by defense counsel.
Other examples are available on the NCBE website, but none are set in stone. Extensive pilot testing of the questions will follow to determine the impact of providing legal resources during the exam and the amount of time examinees have to answer the new question types.
Grading rubrics will also be developed with the help of subject matter experts. Later, NCBE will try to determine the best interface for the new question types and the optimal combination of question types for specific subject areas and skills. Examiners from various jurisdictions will participate in reviewing grading rubrics and standard-setting exercises.
The development of the new bar exam is being closely monitored by the Maryland Board of Law Examiners. While questions remain about whether Maryland should adopt the test in the first wave, expected in 2026, or wait a year or two, adoption at some point seems inevitable.
NCBE is developing the NextGen exam as the “new” uniform bar exam – the old exam will eventually be phased out. Alternative routes to licensure such as diploma privilege or apprenticeships are no longer given serious consideration.
We believe that the adoption of the Multistate Performance Test as a practice-oriented component of the current UBE is a good start in the right direction. The NextGen exam promises to be an MPT on steroids, and we urge the Maryland legal community to take an interest in its development and participate where possible.
We believe that such involvement increases the potential of the NextGen exam to help law schools better prepare new lawyers for practice. We believe that the public will ultimately benefit from that preparation.
Members of the Editorial Advisory Board
James B. Astrachan, Chair
James K. Archibald
Gary E. Bare
Andre M. Davis
Arthur F. Ferguson
Julie C. Janofsky
Erica N. the king
Susan F. Martielli
Angela W. Russell
Debra G. Schubert
H. Mark Stitchell
The Daily Record Editorial Advisory Board is comprised of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their constant exchange of views, members of the Board strive to develop consensus on issues of importance to the bench, the bar, and the public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, the majority views and the names of non-participating members appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.