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Touro Law Review

Touro Law Review

Abstract

The National Conference of Bar Examiners (“NCBE”) is set to administer the NextGen Uniform Bar Examination’s (“UBE”) first release in July 2026. The exam questions are well-structured, well written, and require examinees to understand how the law operates and think like an attorney when faced with a particular problem. This was a primary objective for the NextGen UBE, and it has been met. However, jurisdictions that have adopted the NextGen UBE or are contemplating its adoption still have work to do to ensure that their objectives for a fair test modality and assessment of a lawyer’s basic skill of writing traditional legal analysis are met. Many practitioners, law professors, and students are unaware that the NextGen UBE has moved to a fully online format where examinees will take the nine-hour exam online using their own laptops. Many are also unaware that the NextGen UBE does not contain an essay writing component. Critical issues are raised by this shift to an online test modality because NCBE has not provided data to show whether there is an impact on examinee performance when shifting from a print to digital format. Research studies over the past twenty years, however, show “lower reading comprehension outcomes for digital texts on computers compared to printed texts.”1 Not only will the NextGen UBE be administered online but examinees will use their own laptops which means that each laptop will be different in screen size, resolution, and processing speed. Those who can afford new laptops with larger screens, higher resolution, and faster processing speed will have an advantage over examinees who cannot afford to do so. Examinees with visual or cognitive deficits that impair online processing abilities and speeds, but that do not rise to the level of medically proven disabilities under applicable law and Board of Law Examiner rules, will be disadvantaged. One must ask whether this will lead to a digital divide for NextGen UBE exam takers. Jurisdictions adopting the NextGen UBE should also be troubled by its absence of an essay writing component. Like NCBE’s decision to move the bar exam to a fully online test modality, it erased the essay component of a licensure exam intended for professionals who spend much of their time engaged in writing legal analysis. Instead, NCBE has substituted Integrated Question Sets where examinees answer multiple-choice questions and write short answers to targeted questions, with Performance Tasks that may include a longer writing assignment based on provided Library materials. While these are valuable skills, they are an inadequate substitute for an IRAC based legal analysis (“Issue, Rule, Application, Conclusion”). Since the NextGen UBE is three hours shorter than the current UBE, NCBE has opened a window for jurisdictions to include their own bar exam component and fill this essay gap. It falls to each jurisdiction that has adopted or intends to adopt the NextGen UBE to deliver on its own promise to examinees that it be fairly and equitably administered, that it assesses their knowledge and skills about the law and not their facility with technology, and that it evaluates whether the law school graduate has mastered the essential legal skills and knowledge that a first-year practicing attorney should possess. A combination of the NextGen UBE and a jurisdictional essay component would provide a rigorous and comprehensive licensing exam.

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