Following up on yesterday’s post, NCBE Publishes First Samples Of New Question Types For NextGen Bar Exam: Josh Blackman (South Texas; Google Scholar), NextGen Bar Exam MC Questions Only Require Takers To Spot Issues, And Not Apply the Rules:
In law schools, generations of students have been taught the IRAC model to answer legal questions. First, students must spot the issue—what legal doctrine do the facts implicate? Second, students must state the rule—what particular legal precedent, statute, or principle governs this conflict? Third, students must then apply the rule to these facts—under a particular legal standard, how should the court rule? Fourth, students must state the conclusion—who wins, the plaintiff or the defendant?
Of course, there are many variations of IRAC, and invariably, many students stop using it rigidly at some point during the second year. But the basic process–applying a rule to particular facts is a cornerstone of legal education.
That background brings me to the NextGen bar exam. I have written about this new formulation of the multistate bar exam, which will launch in some states in 2026. Justice Jay Mitchell of the Alabama Supreme Court already expressed a concern that the National Conference of Bar Examiners (NCBE) is placing DEI concerns over competence. (Critics contend that the bar exam is racist, and should be eliminated). I have another concern, which may be related—the NCBE seems to be making the exam substantially easier.
The NCBE released a batch of questions to demonstrate how the NextGen exam will function. The multiple choice questions reflect a new approach. Rather than forcing students to memorize particular rules, and then apply them, the new questions only ask students to spot the issue. The thinking is that practicing attorneys do not actually have to memorize particular rules, or even know how to apply them. So long as they can recognize what doctrine is implicated, a quick query on WestLaw, Lexis, and (lord help us) ChatGPT can locate the particular rule, and then the lawyer can figure out how to apply that rule to the facts (or just ask ChatGPT to do it). In short, bar examinees will not have to know the rule, apply the rule, or conclude the case. They only have to spot the issue. Only I, not RAC. …
I worry that these questions are far too simple. If the states end up adopting the NextGen exam, they should increase the cut score (the relevant percentage needed to pass the exam). Finally, I worry how this exam will trickle down to law school pedagogy. Will professors shift their coverage to no longer require memorizing and applying the rules—only spotting issues? It’s true that all lawyers have sophisticated tools at their disposal to research different topics. This new format seems to be a surrender to this technology—don’t require students to do what they don’t have to. I, for one, do not plan to change how I teach for this exam. And state supreme court justices should take a very long pause before adopting this new exam.
