Thoughts on the NextGen Bar Content Outlines

The NCBE released the NextGen Bar's content outlines recently and asked for public comment.  The comments are due Monday April 18th.  They contacted me asking me to spread the word about the notice and comment process and also encouraged me to provide my thoughts on the blog.  I hesitated until now to not cloud others thoughts during the comment process.  I probably should have posted my comments prior to February bar results.  I might (probably not) have been less harsh a few weeks ago.

I will start with my overall view of the NextGen Bar is severely impacted by prior interactions with the NCBE.  I sat in a room with roughly 150 ASPers (probably most of you reading this) at an AASE plenary session where ASPers were supposed to be able to interact with the NCBE regarding massive drops in MBE scores after adding Civ Pro as a topic.  The NCBE representative spoke for about 55 minutes of the hour session.  She took 1 question regarding cognitive load, didn't provide a coherent answer, and the session ended.  No meaningful interaction occurred.  I attended 2 workshops in Madison with the NCBE, which they do graciously provide at no cost to ASPers.  Their hospitality was wonderful, but the substance in the first workshop didn't further schools ability to assist students.  Most of the workshop justified their exams.  The second workshop provided more information.  They did a great demonstration of how they train graders and provided some information about MBE scores.  While the second event still included justifications, it did provide more information for helping students prepare for the bar.  Like many of you, I found the NCBE's claims about "less able students" offensive and lacking any self-reflection.  I felt the NCBE's pandemic response and white-paper justifying the bar exam lacked basic social responsibility to fellow suffering humans.

I could expound on other grievances with cathartic rants, but I should progress to the current topic. I did want to be transparent that my views are based on interactions beyond the current exam restructuring. 

One stated goal from the communication with the NCBE is the bar will test fewer topics less deeply.  I think that is great.  The current MBE tests a depth of knowledge that is significantly beyond minimum competence to practice law.  The goal is great, but I don't trust the NCBE to execute it.  I believe testing skills attorneys use on a daily basis and law that is truly the minimum amount to be competent is an outstanding goal.  I applaud the NCBE for undertaking a task that could radically change the bar exam.  However, goals and ideas alone don't always produce the best results.  Executing a plan to provide a good exam is critical because individual's livelihoods are at stake.  From my experience with how poorly the MBE tests competence, I worry the NextGen Bar will look different but not actually test minimum competence.  My fear is also the NCBE will continue to justify their exam without self-reflection.  A different bar exam isn't inherently good if it continues to test irrelevant skills on a standardized test.

One way to to fail in execution is content.  The content scope outlines illustrate my worry.  I love they are decreasing subjects.  Students across the country will rejoice when Secured Transactions falls off the exam.  Also, no more Family Law or the UCCJEA rules. Decreasing subjects should focus more on the necessary topics for new attorneys.

In theory, substantive cognitive load decreases.  However, I still see 2 problems.  First, the new skills to be tested (Legal Research, Client Counseling, Negotiation, etc.) can't logistically be tested in a real-world environment.  Texas, New York, or Florida can't watch a simulated Negotiation or Client Counseling session for every taker.  Those skills will be tested in some standardized format, which means students will have to learn the "best" answers for those sections.  That still counts towards the cognitive load required to pass the exam.

My second problem relates to the content within the subjects.  The content includes the traditional MBE subjects.  The outline places an asterisk next to areas that must still be memorized.  Glancing at the Contracts outline, nearly everything still must be memorized, including third-party rights, interpretation, and omitted terms.  Business Associations also seems to need memorization of sections (ie - LLCs) that should be state specific statutory law.  The amount of substantive memorization may decrease due to less subjects, but some subjects still seem to require memorization.  I believe some of the memorization is still beyond what regular "competent" attorneys know.

My problems aside, I do love that common law crimes are no longer tested.  Virtually none of Crim law must be memorized.  Significant portions of Real Property doesn't need to be memorized, especially future interests.  I would throw future interests out completely, but no memorization is a compromise.  Civ Pro requires memorization but most of Evidence doesn't.  There does seem to be effort to decrease content, but I think more could be taken out.

If I merely read the NextGen Bar's content scope outline with their goals, I think it could be a reasonable and relevant exam.  However, I am skeptical of the NCBE based on prior interactions.  I question whether the execution will follow the goals and whether this becomes another standardized mechanism to exclude diverse populations.  I hope I am wrong.

(Steven Foster)