The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Mitchell (Alabama): "The New Bar Exam Puts DEI Over Competence."
Curricular changes are being made now to address the NextGen Bar in 2026.
In recent years, there have been many shifts in how states administer bar exams. One of the most significant developments has been the expansion of the Uniform Bar Exam (UBE). The upshot of the UBE is that a score is "portable." Someone who receives a passing score in one state can transfer that score to another state. The biggest downside, in my view at least, is that the UBE eliminates the requirement to know any state-specific law. Instead, the UBE focuses on "general" legal principles that apply uniformly across the country. In 2015, I warned that the spread of the UBE would obscure the important flavors of local law, and in the long run, harm federalism.
If law students are trained to believe that there is no difference between laws of different states, then an entire generation of lawyers will have even less regard for the values of federalism, wherein the states can serve as laboratories of democracy. There is an importance in State A and State B being able to approach the same principle of law in different ways. Prioritizing a uniform bar exam will diminish respect for that value.
Alas, my concerns did not prevail.
To date, 40+ jurisdictions have adopted the UBE, including my home state of Texas. And that number will eventually approach 50, as states without the UBE place their law students at a competitive disadvantage. The appeal of portability trumped the appeal of lawyers actually knowing the law of the state in which they'll practice. It is difficult to imagine any of these states could abandon the UBE, and revert to a state-specific exam.
Now that the states are hooked, the National Conference of Bar Examiners (NCBE) is preparing the next generation of the exam. The "NextGen" Exam, as it is known, will be launched in 2026. The 1Ls starting in the Fall 2023 will eventually sit for this exam. Prudent law schools will craft their curriculum, in particular 1L coverage, to ensure students are adequately prepared for the NextGen Exam. As usual, law schools are trying to prepare for a moving target–the details of that NextGen are not yet final. And there is reason for concern.
Justice Jay Mitchell of the Alabama Supreme Court highlights some of the troubling revisions in the Wall Street Journal. For example, Mitchell notes, the exam will no longer test Family Law and Wills and Trusts. Last year, my colleagues and I submitted a letter observing that roughly half of the topics covered in property will be optional–that is, students will only need a "general familiarity" with areas like covenants, recording statutes, and mortgages. If a topic is not covered on the exam, then law students likely will not learn that topic. And, when they venture into actual practice, they will be unprepared. For sure, baby lawyers can learn a topic they are unfamiliar with, and I'm sure all of them will. But the NCBE is proactively creating huge gaps in knowledge for all attorneys.
Beyond the substance covered, Mitchell explains how DEI is undergirding the entire process. And a watered-down exam may further reduce the exam's efficacy to measure a lawyer's fitness to practice.
But perhaps the biggest concern is the NCBE's use of the NextGen exam to advance its "diversity, fairness and inclusion" agenda. Two of the organization's stated aims are to "work toward greater equity" by "eliminat[ing] any aspects of our exams that could contribute to performance disparities" and to "promote greater diversity and inclusion in the legal profession." The NCBE reinforces this message by touting its "organization-wide efforts to ensure that diversity, fairness, and inclusion pervade its test products and services."
What does all this mean—and how does it have any relation to the law? Based on the diversity workshop at the NCBE conference, it means putting considerable emphasis on examinees' race, sex, gender identity, nationality and other identity-based characteristics. The idea seems to be that any differences in group outcomes must be eliminated—even if the only way to achieve this goal is to water down the test. On top of all that, an American Civil Liberties Union representative provided conference attendees with a lecture on criminal-justice reform in which he argued that states should minimize or overlook would-be lawyers' convictions for various criminal offenses in deciding whether to admit them to the bar.
None of this is encouraging. It shouldn't matter who you are or where you come from—if you can demonstrate minimal competency on the bar exam and meet a state's character-and-fitness requirements, you should be allowed to practice law. If you can't, you shouldn't be given a license to handle the legal affairs of others. The bar exam should test the law straight—without respect to ideology and on a race- and sex-blind basis.
It would be helpful if a state could simply opt out of the NextGen exam. But they are all hooked onto the UBE. There's no turning back to the old ways. Mitchell proposes one potential off-ramp:
States, for their part, should push for the option to retain the current exam for at least the next five to 10 years until they can properly assess the effectiveness of the new exam. State courts and bar associations would also do well to insist that the NCBE commit in writing that the new exam will be ideologically neutral and blind to race and sex.
In hindsight, state Supreme Courts that adopted the UBE should have given due regard to federalism. Instead, we are stuck with one completely imperfect solution.