Law Schools

The Next Generation Of Bar Exam Questions: What They Are And Why They Still Suck

The bar exam eyes reform, but refuses to fix the core problem.

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bar-exam-300×182As graduates cram for the bar exam this month, the non-profit entity that drafts the exam for the overwhelming majority of jurisdictions has unveiled a “next generation” test coming in 2026. It’s part of the National Conference of Bar Examiners’ effort to show that they’re “hip” to the mountain of criticism it’s received. Criticism that boiled over during COVID when the practical obstacles to filling a convention center with examinees forced folks to realize that comprehensive studies reveal that it fails as an indicator of basic competency to practice law, offers no additional public protection over diploma privilege, and completely misses the point of modern, specialized practice.

So they’ve come up with an All-New, All-Bussin’ version of the test to appeal to the kids out there!

By “non-profit,” I mean that NCBE sits on nearly $138 million in assets and earned $12.7 million in revenue less expenses last year marking an increase from just a few years ago when they had $111 million, made around $5 million per year, and issued vague threats that anyone questioning their exam might see their law license withheld. Not by the NCBE of course. Perish the thought! But… they couldn’t control what their friends Rocco and Sal at the state bar examining authority might do and it would be a real shame.

Anyway, the NCBE has a new bar exam. And despite the rantings of one of the nation’s dumbest judges — a judge who penned a concurrence to inadvertently reveal that he didn’t understand proper written English — that the new exam is all about “DEI” and “wokeness” and other buzzwords that could raise his political profile, the next generation exam is about restructuring questions to better gauge problem-solving skills than rote memorization.

Which is a laudable goal because the practice of law is open-book. It never really made much sense to evaluate future lawyers on the ability to blast out client advice on a universal array of specialties, without conducting research, and under artificial time pressure. What other profession gauges its future practitioners by asking them to perform tasks that would earn them sanctions in the real-world?

So how did the NCBE address this? Here are some sample questions:

Multiple-Choice Question 1
You are a criminal defense lawyer representing a client who has been charged with fentanyl possession. The police found the fentanyl in the guest bedroom of the client’s uncle’s house when responding to a noise complaint at the house. Before entering the house, the officers knocked on the door. When the uncle answered the door, the officers asked if they could look inside the house, and the uncle agreed. The client did not live in the house and was not there at the time of the search. The client had stayed in the guest bedroom of the house two nights prior to the search. The uncle told the officers that the client was the last person to have slept in that room.

You are considering filing a motion to suppress the fentanyl under the Fourth Amendment.

Which of the following legal topics are the most important for you to research to determine the likelihood of success on a motion to suppress? Select two.

A Consent search.
B Exigent circumstances.
C Hot pursuit.
D Probable cause.
E Reasonable suspicion.
F Standing.

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Currently the test might ask if this fact pattern presented consent problems and have a bunch of confusing “yes, because X” and “yes, because Y” and “yes, because X and Y” and “yes, because X but not Y and good luck figuring out how this is different than option A” choices. So this question dresses itself in the conceit that it’s testing skills by asking “what would you research,” which avoids some of the dumb trickery, but doesn’t get at the heart of the problem that this is still fundamentally a doctrinal memory question that doesn’t test whether or not the examinee could actually find the right research — which should be the purpose of a professional licensing exam.

But points for adopting Law & Order’s laziest “ripped from today’s headlines” motif and throwing in the word “fentanyl.”

Multiple-Choice Question 5
A construction worker sued an insulation manufacturer in federal court, claiming that he had developed a chronic health condition as a result of 20 years of exposure to the manufacturer’s insulation at his work sites. The manufacturer answered, denying all liability and stating that it had never supplied its insulation to the worker’s employer.

The worker’s attorney deposed the manufacturer’s president, and the manufacturer’s attorney deposed the worker. Immediately thereafter, the manufacturer moved for summary judgment on the ground that the worker had no evidence showing that the insulation had ever been used by the worker’s employer.

What would be the worker’s best response to the motion for summary judgment? Select one.

A Argue that more time is needed for additional discovery to show the manufacturer’s liability, and attach a declaration describing the desired discovery.
B Argue that the motion should be denied, because a central issue in the case will be the manufacturer’s credibility on the question of its distribution of the insulation, and only a jury can decide questions of credibility.
C Argue that the motion should be denied, because the manufacturer failed to attach any evidence to its motion to show that the insulation was not used by the worker’s employer.
D Make a cross-motion for summary judgment arguing that the manufacturer has introduced no evidence to show that its insulation did not harm the worker.

This is a skill to the extent that “we want more costly discovery” is a useful tool in the plaintiff toolbox, but this might swing the pendulum too far in favor of practicality. Some lessons learned on the streets from wise mentors can stay there — we don’t need to port everything into a test of minimum competency.

Multiple-Choice Question 8
A landlord and a tenant orally agreed to a commercial tenancy for a term of six months beginning on July 1. Rent was to be paid by the first day of each month, and the tenant paid the first month’s rent at the time of the agreement.

When the tenant arrived at the leased premises on July 1, the tenant learned that the previous tenant had not vacated the premises at the end of her lease term on May 31 and did not intend to vacate. The tenant then successfully sued the previous tenant for possession. The tenant did not inform the landlord of the eviction action until after the tenant received possession.

The tenant then sued the landlord, claiming damages for that portion of the lease period during which the tenant was not in possession.

If the court finds for the landlord, what will be the most likely explanation? Select one.

A By suing the previous tenant for possession, the tenant elected that remedy in lieu of a suit against the landlord.
B The landlord had delivered the legal right of possession to the tenant.
C The tenant failed to timely vacate as required to sue for constructive eviction.
D The tenant had not notified the landlord before bringing the eviction action.

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But I’m not going to practice landlord-tenant law. Most lawyers aren’t going to practice landlord-tenant law. This remains the core problem with the bar exam and a problem that no amount of rejiggering can fix: the test doesn’t test what makes a specific person competent to practice law. It’s a dumb exercise in forcing M&A lawyers to cram useless crim pro concepts into their head for three months before either turning them loose with no evaluation of their skills as M&A lawyers or dinging them for failing to master a subject that they have zero interest in ever practicing.

It’s not protecting the public from malpractice to make sure a 40 Act lawyer can challenge a warrant. Maybe in Florida where Donald Trump struggles to get lawyers with criminal law experience to represent him, but nowhere else.

Meanwhile, the fascination with a post-debt, one-shot, generalist, closed-book exam continues to stymie efforts to impose real standards upon law schools. Without a bar exam, the profession would have more leverage to make ABA accreditation require schools to be a lot tougher on the skills and competencies necessary to send a graduate across the stage. We could rely on the law schools to guarantee, over the course of three years of iterative testing, that a graduate is capable of practicing law. As is, ABA accreditation gets the group hauled into court for making life even moderately tough for schools because it doesn’t have the heft that it would if law schools were the gatekeepers to the profession.

At this point in American history, it’s hard to champion curriculum standards, but the abuses are happening anyway. Long-term, a model that reorients the diploma as the proof of minimum competency would be a lot better at protecting the public and saving grads from predatory schools ringing up their tuition and setting them up to fail an independently administered bar exam.

But that wouldn’t earn anyone a $138 million nest egg, so that’s probably not going to happen.

NextGen Bar Exam Sample Questions [NCBE]

Earlier: NCBE Prez Issues Threat To Tie Up Licenses Of Bar Exam Critics
NCBE Dismisses 114-Page Academic Report As ‘Fake News’
Woke Mob Rewriting The Bar Exam Or Something, According To Judge

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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