Group slams NCBE for 'scattershot' approach to offering NextGen bar exam information
As the draft outline for the NextGen bar exam’s family law content was posted for comment on July 8, members of the legal education community criticized the National Conference of Bar Examiners’ “piecemeal” release of “incomplete and inconsistent” messaging about the new exam. (Image from Shutterstock)
As the draft outline for the NextGen bar exam’s family law content was posted for comment on July 8, members of the legal education community criticized the National Conference of Bar Examiners’ “piecemeal” release of “incomplete and inconsistent” messaging about the new exam.
A statement from the Association of Academic Support Educators slammed the NCBE, saying its “scattershot approach to communicating essential information leaves law school academic support faculty without the clear, consistent and reliable guidance necessary to prepare graduates for the new bar exam” that 20 jurisdictions have committed to adopting. Six jurisdictions are scheduled to begin administering the exam in 2026.
The group urged the NCBE to not include family law or trusts and estates in the 2026 exam.
“There have been far too many substantial changes to that already fragmented information to allow academic support faculty and commercial bar review providers to effectively prepare current law students who will be in the first wave of NextGen examinees,” according to the release.
Subject matter outlines aim to spotlight specific topics that might appear on the NextGen exam, which aspires to be more focused on practice-ready skills than memorization. The draft outline for family law will be available for public comment until July 26 and “will only apply to NextGen exams starting in July 2028,” Judith Gundersen, NCBE president, wrote in an email.
Outlines for business associations, civil procedure, constitutional law, contracts, criminal law, evidence, real property and torts are available online.
In May 2023, the NCBE announced that family law was among the topic areas no longer considered required knowledge but would be included in “legal scenarios,” with candidates given resources to reference. But the NCBE changed course in October and added family law back into its core topics.
However, in late May, the NCBE tweaked that, stating that from July 2026 through February 2028, family law will appear on every NextGen exam in a performance task but may also be included in integrated question sets.
On June 3, the NCBE announced that it will not provide extensive legal reference material, such as the Federal Rules of Evidence, on the NextGen exam; instead, it will provide relevant, targeted resources for some question types and questions on certain topics within the foundational concepts and principles. Family law questions, in both performance tasks and integrated question sets, may include relevant resources, Gundersen added.
There have also been shifts regarding trusts and estates. In May 2023, the NCBE announced it had eliminated trusts and estates from required knowledge, but now says it will appear in the same two types of questions as family law, with relevant resources supplied.
Because examinees will be given the necessary legal resources in the exam itself, a trusts and estates outline will not be created, Gundersen wrote.
The AASE objects to the changes. “Adding in family law and other items is not in line with the goal of reducing items on the test,” Nachman Gutowski, AASE president-elect, told the ABA Journal.
“Our concern is they are making changes on the go. We are trying to play catch up, but the goalpost keeps moving. There is not enough time to get students ready,” says Gotowski, director of the academic success program and assistant professor-in-residence at the William S. Boyd School of Law at the University of Nevada, Las Vegas.
“The misunderstanding about trusts and estates comes from the fact that NCBE has never before revealed to examinees that one of those ‘other legal subject areas’ is a prioritized topic on the exam,” Sophie Martin, NCBE director of communications, wrote. “This prioritization was requested by several courts and represents a compromise: We are not in a position to add it to the foundational concepts and principles, but we recognize that several courts wish that it appear on the exam.” She added that NCBE “will seek to clarify in future communications” with the AASE information regarding legal resources.
In addition, the AASE release states the NCBE’s pilot testing took place between August 2022 and April 2023, before the exam’s scope expanded, and the AASE is “concerned about the reliability of the pilot test as a predictor” of NextGen timing and performance.
The shifts and lack of information could further hurt bar passage rates along socioeconomic and racial lines, according to the AASE’s statement.
In 2023, white bar-takers in the U.S. had a first-time pass rate of 84%; Asians, 74%; Hispanics, 71%; and Blacks, 58%, according to the ABA.
