“Progress is impossible without change, and those who cannot change their minds cannot change anything.”
George Bernard Shaw
History and Context
Like most policy discourse, the debate about teaching law students and preparing them for practice is often presented as a battle of ideals between two warring factions: those who seek to keep the status quo and those who desire radical change.
The status quo is the “case method.” Under this model, professors assign case law for students to review before class and analyze those cases in class through a Socratic question-and-answer session. In contrast, law school reformers emphasize experiential education that prioritizes skills and practical training, in addition to discussion and analysis. This viewpoint is more akin to the “case study” model, where real-world examples help students develop various skills and serve as an avenue to practice.
This debate came to a head in 1992 when the American Bar Association published the MacCrate Report. The Report was born out of criticisms that the legal academy was not adequately preparing newly licensed lawyers for law practice. The solution: more instruction on lawyering skills centered on what practicing lawyers do in the real world. The Report did not advocate for discarding the case method, but instead recommended that law schools offer a mixture of doctrinal, clinical, and skills courses to bolster the experiential instruction students receive.
The legal academy listened. Since the publication of the MacCrate Report, legal education has evolved. While the academy has further to go, the false choice between intellectual analysis and technical training gave way to a holistic approach to law school that incorporates the best of both ideals. Law schools established more clinics, expanded skills course offerings, and incorporated more experiential exercises and activities into doctrinal courses while still leaving in place the core law school curriculum. A compromise, the heart of any policy debate, was reached.
A Path Forward
In 2019, the National Conference of Bar Examiners (NCBE) released a report summarizing the many criticisms of the current licensing process. The NCBE obtained input from various stakeholders—including the legal profession, the legal academy, and bar admission agencies—about the current iteration of the bar exam.
Stakeholders generally agreed that the exam could better measuare whether examinees are “minimally competent” to practice law. The criticisms mirrored those identified in the MacCrate Report: the exam covers topics that newly licensed lawyers would likely not encounter in practice; it tests legal doctrine in too much depth at the cost of testing legal skills; it requires memorization in a profession where experts conduct research and prepare in advance; and it does not include question types that focus on skills used in real practice, such as negotiation, research, and client representation.
The questions then became, what to test and how to test it?
Answering these questions is a massive, multi-year process that will culminate in the Next Generation of the Bar Exam in 2026, a reimagined exam that will test fewer subjects and more skills. This trimmed down version of the bar exam will feature eight foundational concepts and principles and seven foundational skills. Development of new question types is ongoing, and an extensive effort to pilot-test and study the new questions is about to begin. Sixty to seventy percent of the exam is expected to test knowledge and thirty to forty percent is expected to test skills, a breakdown that more closely resembles law school education and legal practice, the “before” and “after” of the bar exam.
Integrating Negotiation and Dispute Resolution Skills
The NCBE will pilot-test the use of integrated item sets, a new testing approach. An integrated item set will include an evolving fact pattern and a series of questions related to a single client matter. The examinee will assume the role of lawyer and focus on what should be done at each step in the representation. The matter will involve skills a newly licensed lawyer might employ in representing a client or prospective client in litigation, transactional, or problem-solving situations. The item set will include various initial references, including excerpts from documents that pertain to the client’s situation, such as an accident report, a client interview memo or transcript, or a discovery document, and relevant sources of law, such as a statute or judicial opinion.
Questions within the set will pertain to the inital materials, and new information will be introduced as the examinee works through the problem. Client counseling and advising, investigation and evaluation, and negotiation and dispute resolution will be tested, mimicking real practice. Some questions might ask examinees to recommend potential claims and remedies, identify relevant evidence, and formulate arguments and counterarguments based on the relevant legal rules and standards, all while staying true to the client’s objectives. Other questions might ask examinees to review a transcript of a lawyer’s interaction with a client and identify gaps in the information obtained or make suggestions for improving the lawyer’s effectiveness. Examinees might identify points that favor or harm the client’s position, the benefits or drawbacks of approaches to settling disputed issues, and resolutions that might satisfy both sides to the dispute. Perhaps music to an experienced lawyer’s ears, a question might also require examinees to describe the client’s best and worst alternatives to a negotiated agreement or identify the best- or worst-case outcome to accepting an offer.
Using a mix of stand-alone questions, item sets, and other item formats currently being studied, this integrated exam design is expected to assess knowledge and skills holistically. The exam will be administered on computers, which allows for more dynamic question sets and for testing skills beyond those included on the current bar exam. For some topics, examinees will still need to be prepared with knowledge of legal doctrine. But for many topics, including negotiation and dispute resolution, examinees will receive a statement of the relevant legal principles, so assessment will focus solely on the tested skills. Heeding criticisms regarding time pressure, pilot-testing of new questions will determine the amount of time needed to answer the new question types, and the exam overall is expected to include fewer questions than the three tests that currently make up the Uniform Bar Exam (UBE).
Necessarily, questions regarding negotiation and dispute resolution will overlap with other subject areas, such as contract or tort law, as well as professional responsibility. Professional responsibility topics covered may include competence, diligence, conflicts of interest, and truthfulness and candor, among others. While the MPRE will remain as a stand-alone, deep dive into professional responsibility rules, the new exam will integrate some professional responsibility rules into questions testing negotiation and counseling skills, contexts where such questions often arise. Indeed, various stakeholders identified professional responsibility as among the most important topics for new lawyers to know, understand, and apply.
With questions organized around client matters, the exam will better reflect real-world practice without artificial separation of question type and content. As in real practice, rarely are there precise answers to a dilemma.
A Prototype Example: General Excerpts from an Item Set
A prototype item set features an initial scenario, which includes facts that lend themselves to testing one or more legal skills in the context of one or more substantive or procedural legal issues. While details regarding the following example item set have been omitted, the scenario and questions weave together two subject areas (criminal law and evidence) with various skills (issue spotting, investigation and evaluation, client counseling and advising, and negotiation and dispute resolution).
