Faculty Opinion/Editorial
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A New Bar Takes Shape
ost attorneys vividly recall their experience with the Bar exam. Some might say (only half-jokingly) it is a form of PTSD. It generally involves spending two or three days in a facility with many other anxious test takers attempting to recall vague or nuanced rules on several essays and a couple hundred multiple-choice questions; and, for some, also completing a performance test (e.g., drafting a memo in 90 minutes). Along with the experience of the exam itself, most attorneys recall the weeks they spent preparing for it — hours of learning the rules, doing practice problems and stressing about the exam. Some attorneys have questioned why the test that determines whether or not they will be licensed to practice law does not mimic or test the skills they actually use in practice. Some attorneys have also questioned what is tested on the bar exam because certain subjects have never come up in their practice. The National Conference of Bar Examiners (NCBE), the entity that designs and distributes components of the Bar exam, has been listening to these criticisms for the last couple of years and using them to direct the creation of a new Bar exam. That new Bar exam, which the NCBE refers to as the next generation Bar exam or NextGen, is anticipated to arrive in 2026.
by Professor and Director of Bar Preparation DeShun Harris
It will test foundational skills and cover a smaller number of subjects. Seven skills will be tested and will include skills such as client counseling and advising, issue spotting and analysis and legal writing. Examinees will be tested on their knowledge of only eight subjects. It will eliminate testing of subjects like secured transactions or wills and estates, and test subjects such as torts, evidence and business associations. The NCBE will test examinees on concepts that are likely to come up often in practice, that are applicable to multiple areas of law and topics where ignorance could result in a risk to the public. Thus, the breadth and depth of coverage will be limited so that test takers don’t need to know “the exceptions to the exceptions.” The NCBE is still developing the structure of the test, but we already know it will move away from the structure of the traditional Bar exam. The new exam will be integrated so that knowledge and skills are blended rather than separated. It could provide the examinee with a client scenario and ask the examinee what she might advise the client to do first and provide them with a series of options to choose. Examinees could be asked to complete tasks through fill in the blank. They could be given the law and a hypothetical situation and asked to fill in parts of a pleading or contract based on what they know. The NCBE has indicated they are exploring a number of testing devices to evaluate the examinees practice-ready skills and knowledge.
The NCBE has also decided how and when the new Bar will be administered. The new exam will move away from being paper-based and become a computer-based exam. Examinees may go to a testing center or use their laptops at a facility managed by the jurisdiction. The exam will also continue to be administered twice a year. Memphis Law is already hard at work evaluating our curriculum to ensure our students are prepared for the changes. But this new focus on practice-ready skills and experience is something we’re uniquely prepared for thanks to our deeply rooted and innovative experiential learning program. Hands-on experience has been a strength of our program for years and our legal clinics and externship program have helped our students do more than just learn the basics of the law. Our graduates are leaving law school with a unique blend of legal advocacy, handson training and lessons from intensive learning environments. So as the new Bar exam takes effect, Memphis Law students will be ahead of the curve when it comes to being tested on these real-world skills. As they work to revamp the exam, the NCBE has indicated they will provide information along the way and provide prototype questions so that law schools can begin to make any necessary changes. We will be using this information so our students are ready for the new exam, but it’s exciting to know that our students are already gaining the real-world experience that the updated Bar will be testing for!
MEMPHIS L AW | SUMMER 202 2
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