Law School Academic Support Blog

TESTMAKER'S FOOTHOLD ON BAR EXAMINATION IS NOW UNCERTAIN

      Bar licensure is undergoing monumental changes across the United States. The ABA has approved non-exam pathways to licensure, California and Nevada are developing their own bar exams, several states are lowering bar pass cut scores, and the NextGen bar exam is set to launch in 2026. These rapid reforms are driven by various factors, including pandemic measures, equity efforts, and concerns about the practice readiness of new attorneys. Bar prep expert Sean Silverman likened the influx of bar exam reform avenues to a tidal wave.

      Experts agree that the traditionally slow-moving bar exam reforms have accelerated, with significant changes across multiple jurisdictions. California's move to a remote exam and other states considering alternative licensure pathways reflect a shift towards more practical and inclusive methods of assessing legal competence. These reforms, coupled with the upcoming NextGen Bar Exam, signal a broader reevaluation of the bar exam's role and effectiveness, making this an essential period for anyone following bar exam discussions.

      For decades, the wide acceptance of bar exam products generated by the NCBE had left little appetite for reform efforts. But that appetite may now be fueled by uncertainties and inconsistencies associated with the promised 2026 launch of the NextGen bar exam. As more jurisdictions explore alternative pathways to licensure and explore non-NCBE-produced exams, the NCBE monopoly foothold on bar licensure may begin to give way. A new white paper, co-authored by four academic support professors, questions whether national adoption of the NextGen bar exam is inevitable.

      This is a pivotal moment, emphasizing the importance of this juncture for those interested in bar exam developments. If you have not followed all the discussions about the bar exam in recent years, this ABA Journal article by Julianne Hill, captures the many viewpoints and concerns about what has been the traditional path to licensure in the United States. If you are someone who has followed the conversation on the topic, this article is an organized way to revisit what you know and hear various perspectives.

Unprecedented

Have you ever seen The Princess Bride[1]? The character played by Wallace Stevens says that pretty much everything he encounters is, “inconceivable.[2]” Eventually, the character played by Mandy Patinkin tells him that his over reliance on this word might be misplaced considering the actual meaning and the situations where it is being used. He tells Wallace Stevens, “[y]ou keep using that word. I do not think it means what you think it means.”

I think we (all of us!) are all using the word unprecedented in a similar vein--yes, we are all shocked by current events –but are these things truly unprecedented? Unprecedented is defined by the Cambridge dictionary as, “never having happened or existed in the past[3]’ Perhaps the combination of events we are witnessing has never happened before, but let’s take a look at some of these “unprecedented events” more closely.

1. Assassination attempt: been there, done that. Some even succeeded. Not unprecedented. The fact that it was a past-President running again after losing an election may be a novel spin, but still shooting at folks is nothing new.[4]

2. Case dismissed because of a Brady violation: has totally happened before-you know like in the actual Brady case[5]? That was in 1963, so I am guessing it has happened a few times since then as well. The fact that was a celebrity making a film may be something different, but fu^&ing around with Due Process and finding out is, again, nothing new.

3. Incumbent drops out of race: been done. A few times. Perhaps announcing it a month before the Convention is a twist, but nonetheless, walking away is nothing new.

4. Doing something for the good of others (and a nation) rather than for yourself or your power: it has been a while since we have seen such a classy and honorable action, but this isn’t the first time it has happened. I imagine there are people making these decisions every day and we are just not hearing about it-because selfless and honorable deeds are not done for the glory of the doer. Good people are (fortunately) nothing new.

5. The Supreme Court overturning itself and others: this has fortuitously happened before (Plessy overturned by Brown[6] is an example). And yet, since it obliterates precedent, it seems to be unprecedenting[7] but not unprecedented (say that five times fast). Has the Court always been as politically motivated as it now seems? As much I would like to say no, I would offer the Warren court. Are their decisions more palatable to me because they align with my politics? Yes. But was it political? Also, yes. However, revoking rights rather than finding and enforcing them is a twist here, but the Court bending to the wind is nothing new.

This list could go on a for a long while (pandemics, etc.), but here’s the bottom line: yes, much of what is going on is a different variety of what has happened in the past. It may not have happened in our lifetimes, or all together, but to continuously use the term unprecedented for all of them dilutes the meaning of the word. Let’s save it for truly unprecedented things like having a woman of color running for President[8].

I mean, like, literally, can’t we find another term for the other stuff?

Happy Bar Week (next week) to those who celebrate!

(Liz Stillman)

 

[1] If you answered no to this question you need to stop reading now and go watch it. Seriously, have you been under a rock? This is a classic film and should be part of your cultural vocabulary. I’ll wait.

[2] https://screenrant.com/princess-bride-every-time-vizzini-says-inconceivable/#:~:text=%22He%20didn't%20fall%3F,seemingly%20normal%20man%20has%20survived.

[3] https://dictionary.cambridge.org/us/dictionary/english/unprecedented#google_vignette

[4] And it is horrible-but not something we haven’t seen before.

[5] Brady v. Maryland, 373 U.S. 83 (1963)

[6] Brown v. Board of Education, 347 U.S. 483 (1954).

[7] Yes, I made up this word. It was therefore an unprecedented use. Ha!

[8] And while it is unprecedented in 2024, which is far, far too late, if things go as planned at the convention, then we cannot ever use the term again. How lovely would that be?

July 9th Statement by AASE regarding NextGen

AASE released a statement this week regarding NextGen's haphazard rollout.  You can view the statement here.  I also copied it below.

(Steven Foster)

Scattershot Rollout of The Nextgen Bar Exam May Exacerbate Disparate Bar Pass Outcomes Along Socioeconomic and Racial Lines

Law school graduates will not be sufficiently prepared for the new bar exam scheduled to be administered in 2026. Twenty jurisdictions have already adopted the NextGen bar exam and six of the 20 have committed to administering the exam in 2026 even though crucial information about costs, scoring, portability, and the substantive content is not yet available.[1] Only fractional information has been released about the exam, and there have been far too many substantial changes to that already fragmented information to allow academic support faculty and commercial bar review providers to effectively prepare current law students who will be in the first wave of NextGen examinees.

Amy Meyers, Director of Academic Skills & Bar Success at Willamette University College of Law, reached out to the Association of Academic Support Educators desperately seeking help to fill in the many information gaps about the NextGen exam. In an email to the Association’s president, Meyers pleaded:

“My knowledge is based solely on the NCBE press releases and what I can gather from the [academic support listserv]. As a lawyer, I don’t like relying on hearsay. As an educator, I don’t like trying to teach based on the breadcrumbs I can piece together from those sources. It seems to me that my students should be preparing for such a high-stakes test as the NextGen Bar Exam with more clarity than I can provide. That’s not a comfortable feeling.”

The proprietor of the NextGen exam, the National Conference of Bar Examiners (“NCBE”), has published only piecemeal information distributed over sporadic intervals about the exam’s substantive content and format. Recent statements by the NCBE have contradicted the entity’s earlier promises about the scaled-down exam. The incomplete and inconsistent messaging from the NCBE could potentially impede the performance of bar takers and further contribute to disparate bar passage rates along socio-economic and racial lines. This scattershot approach to communicating essential information leaves law school academic support faculty without the clear, consistent, and reliable guidance necessary to prepare graduates for the new bar exam. With the added emphasis on bar passage in accreditation standards and law school rankings, legal educators cannot afford to silently acquiesce to the significant uncertainties presented by this rollout of an exam that will determine the future careers of law school graduates and the standing of law schools.

After careful scrutiny of all released information, we find the small set of sample questions covering only limited subject matter, coupled with the unclear description of the most recent changes to the not-yet-released exam, wholly insufficient to offer fair and reasonable notice as to the format, content, scoring, scaling, and resources available for the licensure exam. Our specific concerns are summarized below:

 Contradictory Information Regarding Exam Scope and Content

• On May 25, 2023, the NCBE announced the eight subject areas to be tested on the NextGen exam: Business Associations; Civil Procedure; Constitutional Law; Contracts; Criminal Law and Criminal Procedure; Evidence; Real Property, and Torts.
• The NCBE stated, that the new exam will no longer require examinees to have a base of knowledge in the areas of conflict of laws, family law, trusts, and estates, or secured transactions, but these topics may still be included in certain legal scenarios for which examinees are provided relevant reference materials . . . .[2]
• However, on May 29, 2024, the NCBE contradictorily announced that from July 2026 through February 2028, family law and trusts and estates will appear on every NextGen exam in a performance task and may also be included in integrated question sets.[3]

In addition to the late release of the significant additions of two areas of black letter law, we are deeply concerned that the NCBE has not provided a content scope outline for Trusts or Estates. The test maker has stated that these content outlines will be published by “late 2024,” but that illusive commitment still leaves law schools with less than three full semesters to make the necessary adjustments to curricular content.

The information currently provided by the NCBE is too vague to allow prospective NextGen examinees to thoroughly prepare for the exam. Due to these uncertainties, we urge the NCBE to limit the subject matter of the exam to exclude Family Law, Trusts, and Estates. Bar applicants taking an exam in 2026 should have the benefit of knowing the scope of exam content when they entered law school. To do otherwise will place early NextGen applicants at a comparative disadvantage to applicants who will be taking the UBE in 2026 and 2027.

Insufficient Pilot Testing

 The NCBE conducted pilot testing for the NextGen exam from August 2022 to April 2023, but only limited and self-reported information is published about the outcomes of the pilot testing.[4]

Because the pilot testing took place before the decision to expand the scope of the NextGen exam to include Family Law, Trusts, and Estates, we are concerned about the reliability of the pilot test as a predictor for the timing and/or performance on the NextGen exam. We urge the NCBE to conduct additional pilot testing to assure all stakeholders that there will be stability between scores for the current Uniform Bar Exam and the NextGen bar exam.

Legal Reference Materials are Essential to Assess Law Practice Skills

• On June 3, 2024, the NCBE announced that it will not provide legal reference material on the NextGen exam; but that it would provide relevant, targeted resources for some question types, and questions on certain topics within the foundational concepts and principles.
• Nestled in the release of the pilot testing results, is the NCBE’s decision to exclude additional legal resources from the NextGen exam.

According to the NCBE, the aim of NextGen exam is to make the bar exam more realistic and to reduce the amount of legal knowledge that candidates must commit to memory for the exam, while emphasizing law practice skills. Lawyers in practice do not rely on memorization, but on skilled access to legal and information resources. Yet, despite the reality of law practice and its own claimed intention, the NCBE appears to have done an about-face on providing the Federal Rules of Evidence as reference material on the exam.[5] This significant departure does not support the assessment of practice-ready lawyers.

We are reasonably reluctant to rely on the NCBE’s promises of forthcoming materials and the provision of resources during testing because of the many previous changes and the recalcitrant decision to exclude promised reference material that a majority of pilot test takers relied upon. More in-depth research should be conducted by independent psychometricians unaffiliated with NCBE to assess how access to reference materials might impact performance indicators that are not captured in exam scoring like test anxiety and imposter syndrome.

The NCBE Has Offered No Guidance for the Testing of Legal Research

• The NCBE’s website says that it is still “exploring options for testing legal research” and that sample questions testing legal research will be available at a later date that remains uncertain.

The overwhelming majority of current law students who will be taking a bar exam in 2026 and 2027 have or will have completed the required courses in Legal Research and Writing prior to sample questions being released. The unfairness of the promised late release will be compounded on individuals who lack the time and money resources to engage in costly bar preparation programs. Those individuals are more likely to benefit from law school academic support programs, and yet the academic support faculty have not been able to offer any meaningful guidance that will make their bar exam success more likely. We urge the NCBE to delay testing of legal research until 2028 or some future date when law students can have fair notice and access to the scope and content of exam questions in this areas to be tested.

Academic support faculty cannot appropriately aid in the bar readiness of our students and future graduates with vague, incomplete, and constantly changing information from the test maker. We implore the NCBE for its cooperation and recognition of the potential to exacerbate alarming disparities in test outcomes for law school graduates who have the greatest need for academic support programs.

ON BEHALF OF THE ASSOCIATION OF ACADEMIC SUPPORT EDUCATORS[6]

[1] https://www.ncbex.org/exams/nextgen

[2] https://www.ncbex.org/news-resources/ncbe-publishes-content-scope-nextgen-bar-exam

[3] See https://www.ncbex.org/news-resources/illinois-administer-nextgen-bar-exam-2028 (During this period, family law concepts will be tested with the provision of legal resources. Starting in July 2028, family law and trusts and estates will be included in the foundational concepts and principles tested on the NextGen bar exam and will be tested in the same manner as the other foundational concepts and principles.)

[4] https://nextgenbarexam.ncbex.org/reports/research-brief-pilot-testing/#whatis1

[5] https://thebarexaminer.ncbex.org/article/winter-2022-2023/the-next-generation-winter-22/ (“Another major change underway for the new exam is the plan to provide examinees with supplemental materials where appropriate, such as relevant portions of the Federal Rules of Evidence, so that they need to rely less on specific recall of legal doctrine details.”)

[6] The Association of Academic Support Educators is a non-profit professional organization for law school academic support educators. Our members collaborate to develop research-based teaching methods and enhancement programs that empower students to succeed in law school, on the bar exam, and in the practice of law.

 

 

 

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Assistant Director of Curriculum Development at CALI

CALI is hiring an Assistant Director of Curriculum Development.  The posting is below.  Here is the link.

Position Title	Assistant Director Curriculum Development II
Requisition #	S01296P
FLSA	Exempt
Location	IIT-Downtown Campus (DTC), Chicago, IL
Department	CK CALI
GENERAL DESCRIPTION	This position will assist with the creation of new educational content for CALI – lessons, formative assessments, textbooks, podcasts, etc. This involves liaising with law faculty authors, training, editorial work on their submissions and content review and updates. This involves learning CALI’s software tools and procedures. Some travel and presentations for community outreach.
COMMUNICATIONS	This position will work closely with the Director of Curriculum Development and report directly to the Executive Director. This position will need superlative communication skills working with law faculty, CALI staff and any others to affect the acquisition, creation and publication of CALI content.
CUSTOMER SERVICE	This position will provide customer service to law faculty wishing to adopt and use CALI content in their teaching and courses.
Special Schedule Requirements	N/A
EEOC Statement	Illinois Institute of Technology is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA employer dedicated to building a community of excellence, equity, inclusion and diversity. It is committed to fostering an inclusive environment and actively seeks applications from individuals of all backgrounds and identities regardless of race, color, sex, marital status, religion, national origin, disability, age, unfavorable discharge from the military, status as a protected veteran, sexual orientation including gender identity and expression, order of protection status, and/or genetic information. All qualified applicants will receive equal consideration for employment.

Qualifications

Education & Experience	Minimum Juris Doctorate from a US law school. Five years experience in law practice or academic law school setting.
Knowledge & Skills	Stellar interpersonal/communication skills Excellent project management Excellent presentation skills to law faculty at conferences and meetings Excellent editorial skills (spell checking, writing, careful reading, editing, grammar) / attention to detail Ability to learn new software quickly
SUPERVISION & BUDGET AUTHORITY	No supervision or budget authority.
Physical Environment and Requirements	Some travel required – 2-3 trips per year to law school related conferences.

Certifications and Licenses

List any certifications or licenses that are either required or helpful in performing the job, designating whether required or preferred.	N/A

Key Responsibilities

Key Responsibility	Supervise the creation of new CALI lessons by finding new authors, training them in the process and software, acting as editor and proofreader on their content and publishing to the CALI website.
Percentage Of Time	50

Key Responsibility	Supervise the creation of new CALI podcasts, ebooks and other content by finding new authors, training them in the process and software, acting as editor and proofreader on their content and publishing to the CALI website.
Percentage Of Time	25

Key Responsibility	Work with Director of Curriculum Development on content updates and subsidiary content, finding aides, articles and such.
Percentage Of Time	15

Key Responsibility	Design and deliver training, presentations and one-on-one interactions with law faculty and law school constituents relating to CALI’s missions and content.
Percentage Of Time	10