The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
NextGen Bar Exam MC Questions Only Require Takers To Spot Issues, And Not Apply the Rules
Rather than IRAC, students will only need to focus on the issue.
In law schools, generations of students have been taught the IRAC model to answer legal questions. First, students must spot the issue--what legal doctrine do the facts implicate? Second, students must state the rule--what particular legal precedent, statute, or principle governs this conflict? Third, students must then apply the rule to these facts--under a particular legal standard, how should the court rule? Fourth, students must state the conclusion--who wins, the plaintiff or the defendant?
Of course, there are many variations of IRAC, and invariably, many students stop using it rigidly at some point during the second year. But the basic process--applying a rule to particular facts is a cornerstone of legal education.
That background brings me to the NextGen bar exam. I have written about this new formulation of the multistate bar exam, which will launch in some states in 2026. Justice Jay Mitchell of the Alabama Supreme Court already expressed a concern that the National Conference of Bar Examiners (NCBE) is placing DEI concerns over competence. (Critics contend that the bar exam is racist, and should be eliminated). I have another concern, which may be related--the NCBE seems to be making the exam substantially easier.
The NCBE released a batch of questions to demonstrate how the NextGen exam will function. The multiple choice questions reflect a new approach. Rather than forcing students to memorize particular rules, and then apply them, the new questions only ask students to spot the issue. The thinking is that practicing attorneys do not actually have to memorize particular rules, or even know how to apply them. So long as they can recognize what doctrine is implicated, a quick query on WestLaw, Lexis, and (lord help us) ChatGPT can locate the particular rule, and then the lawyer can figure out how to apply that rule to the facts (or just ask ChatGPT to do it). In short, bar examinees will not have to know the rule, apply the rule, or conclude the case. They only have to spot the issue. Only I, not RAC.
Consider this Criminal Procedure question:
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.
The correct answer here is A (Consent Search) and F (Standing). Those are the legal topics that are "most important" to research. First, would the Uncle have authority to consent to the search? Second, would the criminal defendant have standing to challenge the Uncle's consent? Now the examinee does not actually have to answer whether the motion to suppress would be granted. Who cares if the Uncle could consent to the search? It doesn't matter if the defendant has standing. The test taker doesn't even have to know the relevant rules for consent searches and standing. All she has to do is spot the issue. I suppose the NCBE thinks that a first-year lawyer can simply enter "consent search" and "standing" into ChatGPT, knowing nothing more, and download the answer. I am not confident anyone can figure out these doctrines on the fly.
Let's try a Property question.
You are representing a client in a dispute with a neighbor. The client owns a single-family home with several acres of surrounding land. Recently, the client noticed that his neighbor had built a fence that extends onto the client's land. The client is unsure when the fence was built because that part of the client's land is obscured by large trees. When the client contacted the neighbor about the fence, the neighbor claimed that she did not know the location of the property line. The client has shown you a recent survey of the property that confirms the encroachment and has asked you whether he has a claim against the neighbor.
Which of the following legal topics are the most important for you to research before advising the client? Select two.
A. Adverse possession.
B. Conversion.
C. Implied easement.
D. License.
E. Negligence.
F. Trespass.
The answers here are, once again, A (Adverse Possession) and F (Trespass). The question presented is whether the neighbor's fence encroaches (trespasses) on the client's property, and if there is an encroachment, has the neighbor acquired the right to do so through adverse possession. This question is complicated, because trees obscure the boundary (affecting the open and notorious prong), and the neighbor may not have even known if he was obtaining land through adverse possession (in the lingo, did he have the right claim of right?). I could see a student struggling with applying the rules to this question. But on the bar, an applicant only needs to spot the relevant doctrine, and pray they can figure stuff out when in practice.
I worry that these questions are far too simple. If the states end up adopting the NextGen exam, they should increase the cut score (the relevant percentage needed to pass the exam). Finally, I worry how this exam will trickle down to law school pedagogy. Will professors shift their coverage to no longer require memorizing and applying the rules--only spotting issues? It's true that all lawyers have sophisticated tools at their disposal to research different topics. This new format seems to be a surrender to this technology--don't require students to do what they don't have to. I, for one, do not plan to change how I teach for this exam. And state supreme court justices should take a very long pause before adopting this new exam.
