This article originally appeared in The Bar Examiner print edition, Summer 2022 (Vol. 91, No. 2), pp. 42–43.By Kellie Early
The Big Picture
Oh, the details! NCBE is awash in details surrounding the tasks to be done to develop the next generation of the bar exam. A project of this complexity, scope, and significance involves lots of particulars, and they require attention to ensure success. But, as the old saying goes, it can be easy to lose sight of the forest for the trees. As we necessarily focus on the specifics of what the new examination will assess and how, and how it will be delivered and scored—“the trees”—it is important to keep in mind why NCBE is undertaking a redesign of the bar examination and our objectives for this new examination—“the forest.”
Continually Improving to Serve Jurisdictions
Jurisdictions rely upon NCBE to provide high-quality test products that result in reliable and valid scores for making licensing decisions that are fair to candidates and protect the public interest. NCBE has a long track record of continuous improvement of its products and services to best serve the legal profession, the jurisdictions that regulate said profession, and the candidates who seek to join it. NCBE provides the testing expertise and experience to ensure the bar examination meets the Standards for Educational and Psychological Testing, which provide criteria for sound testing practices and the interpretation of scores for the test’s intended uses. (See the article about the Standards and its foundational concepts.)
Because occupations and their duties can and do change over time, best practices dictate periodic review of licensure exam content to ensure that the knowledge, skills, and abilities being assessed remain necessary for competently performing the job. Consistent with best practices, NCBE has undertaken such studies to determine the content to be tested on the bar examination. Most recently, in January 2018 NCBE formed the Testing Task Force to undertake a research study to ensure the bar examination continues to assess the competencies required of newly licensed lawyers in an evolving profession.
The Three Phases of the Testing Task Force’s Study
Although NCBE could have limited the Testing Task Force’s study to identifying any necessary updates to the content to be assessed while otherwise maintaining the status quo, NCBE instead charged the Task Force with considering every aspect of the bar exam, including possible changes to how content is assessed and how the exam is administered and scored. The study was conducted in three phases.
During Phase 1, a series of listening sessions were held across the country, where more than 400 stakeholders from bar admission agencies, the legal academy, and the legal profession provided their views about the current bar exam and ideas for how it could be changed.
Phase 2 consisted of a nationwide practice analysis survey completed by nearly 15,000 lawyers that provided a rich dataset on the work newly licensed lawyers perform and the knowledge and skills they need to do so.
In Phase 3, two committees composed of bar admission representatives, legal educators, and practitioners considered the data produced in Phases 1 and 2 to arrive at suggestions for what should be tested, and when and how it should be tested.
The Objectives Underlying the Task Force’s Recommendations
Based on this extensive research, a set of high-level recommendations for the content, design, and administration of the next generation of the bar examination was approved by NCBE’s Board of Trustees in January 2021. The objectives underlying those recommendations are as follows:
- place greater emphasis on assessment of lawyering skills and on legal knowledge that is of foundational importance regardless of practice area
- integrate assessment of knowledge and skills to better reflect the real-world practice of law and types of activities newly licensed lawyers execute
- continue to ensure fairness and accessibility for all candidates
- maintain the benefit of score portability associated with the Uniform Bar Exam (UBE)
- keep the exam affordable
NCBE is working to achieve these objectives, or, in the case of the last three objectives, working to carry them over from the current exam as we work to develop the new exam. It is important not to lose sight of these big-picture aims, as they guide the many policy decisions being made.
The UBE and the New Exam
A little more than a decade ago, the UBE debuted and the benefits of score portability were introduced. The UBE responded to changes in the profession, such as the increasingly multijurisdictional nature of practice and the need for greater uniformity and efficiency in the licensing process for a more mobile generation of newly licensed lawyers. As adoption of the UBE has spread, so too has the recognition that the foundational knowledge and skills necessary for competent entry-level practice are largely the same across the United States.
Today, 41 jurisdictions have adopted the UBE, and candidates, the public, and the profession have all benefited from having a bar exam that is uniformly administered, graded, and scored (with scores being portable) to determine readiness to enter practice in any of those jurisdictions. Together, NCBE and jurisdictions reached policy decisions along the way about how the UBE works by keeping the objective of supporting score portability front and center.
I draw this parallel between the UBE and the new exam because in both instances NCBE acted to benefit candidates, jurisdictions, and the public. By developing the new exam, NCBE looks to serve the jurisdictions by providing candidates with a testing experience that is uniform, efficient, affordable, accessible and fair, and feels relevant to the practice of law. The public interest is likewise served by a high-quality, professionally developed bar examination that assesses the foundational knowledge and skills necessary for competent, entry-level practice in any practice area in any jurisdiction.
As with the UBE, NCBE is developing the new bar exam in a transparent and collaborative manner that rests on stakeholder feedback. Follow our progress and learn about opportunities for stakeholder participation by subscribing to the NextGen website at nextgenbarexam.ncbex.org/subscribe.
Kellie Early was the Chief Strategy Officer for the National Conference of Bar Examiners, until her retirement in June 2022.
To stay up to date on development of the new bar exam, subscribe to updates at nextgenbarexam.ncbex.org/subscribe.
The Next Generation of the Bar Exam
In January 2021, the NCBE Board of Trustees approved the recommendations of NCBE’s Testing Task Force for the redesign of the bar examination to ensure that it continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing profession.
The board appointed an Implementation Steering Committee (ISC), which is charged with general oversight of the implementation of the findings and recommendations from the Testing Task Force study. Four staff workgroups—Test Development and Psychometrics; Test Delivery and Operations; Diversity, Fairness, and Inclusion; and Strategy, Coordination, and Outreach—are working with the ISC to develop the next generation of the bar examination and ensure a smooth transition for candidates, jurisdictions, and law schools.
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