As clock ticks for bar exam decision, California allows state judges to vet questions
With the clock ticking toward a July deadline to determine which bar exam format will be used in 2028, the California Supreme Court on Thursday approved allowing state judges to weigh in on developing the state’s bar exam.
The moves follow the disastrous launch of a hybrid exam in February. That exam’s administration was plagued with technical issues and included some questions generated by nonlawyers with the help of artificial intelligence, among myriad issues.
Last week’s administrative order adds active and retired state judges to panels that can vet new bar exam questions to test minimum competency, joining law school faculty members and others. Judges and licensed attorneys will also be included on another panel of subject matter experts who will check the questions for accuracy, according to the order.
Susan Smith Bakhshian, director of bar programs at Loyola Law School in Los Angeles. (Photo courtesy of Loyola Marymount University)
But there’s a much bigger issue at hand, says Susan Smith Bakhshian, director of bar programs at Loyola Law School in Los Angeles.
“The California Supreme Court’s order is akin to rearranging deck chairs on the Titanic,” she told the ABA Journal. “The focus needs to be on finding the best path forward and getting it in place by July 2028.”
In October, the state passed a law mandating 18 months’ notice before it can switch vendors. The National Conference of Board Examiners is sunsetting the Uniform Bar Exam—including the Multistate Bar Exam portion that California returned to after the February fiasco—in 2028, so the state supreme court must approve a new bar exam by July.
At the State Bar of California’s Committee of Bar Examiners’ Dec. 5 meeting, several options were discussed, including using the NCBE-created NextGen UBE with a California-specific component; administering a three-pronged evaluation that would mirror neighboring Nevada’s new system launching in 2026; or offering a new California bar exam using multiple-choice questions developed by Kaplan.
Too big?
Each option has pros and cons, sources say.
In August, deans from 11 of California’s ABA-accredited law schools wrote the committee of bar examiners requesting that the state use the NextGen UBE, stating it is the best path for complying with the state supreme court’s directives for the bar exam.
“In our view, the NCBE is the only entity with the resources, expertise and experience to successfully meet the parameters set out by the [state supreme court’s] order and to avoid a repeat of this spring’s disaster,” the letter states.
Austen Parrish, dean of the University of California at Irvine School of Law. (Photo by Tom Casalini)
But the new skills-based exam adopted by 47 jurisdictions has limitations too, says Austen Parrish, dean of the University of California at Irvine School of Law, who signed the deans’ letter.
He notes that California has been reluctant to turn over test development to NCBE. Like many in other states, he adds, some in California are concerned about the NCBE having too much control on a national level and whether they have been responsive enough to state concerns.
“The NextGen exam was intended to move away from an emphasis of memorization of doctrine to more skills-focused, but it’s not clear how effectively it will do that,” he told the ABA Journal.
“Reports are the NextGen exam is not as different from multiple-choice questions as once thought,” he adds, and other concerns focus on what topics are—or aren’t—tested, the current amount of study materials, the exam’s reliability to test minimum competency and whether the new format will lead to more inconsistent grading.
The Nevada plan consists of a test of 100 closed-book multiple-choice questions that can be taken during or after law school, three two-hour performance tests, and 40 to 60 hours of client work plus self-directed learning explorations.
It makes sense, says Joan Howarth, professor emerita at the University of Nevada Las Vegas Boyd School of Law.
“Breaking the exam into component parts taken at different times is a structural shift that can improve the assessments and provide welcome flexibility for jurisdictions and candidates,” says Howarth, a member of the Nevada Supreme Court Bar Licensing Commission that helped develop the plan.
“This is also likely to reduce expenses for the state bar because they will be able to offer at least some components in test centers rather than in expensive convention centers,” Deborah Jones Merritt, a professor emerita at the Ohio State Moritz College of Law who helped develop the Nevada test’s multiple-choice questions.
The State Bar of California faces financial woes that are in part blamed on the cost of renting huge convention centers to conduct the in-person exam. In fact, those financial troubles motivated the move away from the NCBE last year.
“California already writes their own performance tests, so it would be easy for them to create that component of a staged licensing process,” Merritt adds. “They could also include some of the skills and state-law rules identified by the supreme court in those performance tests.”
But Parrish is concerned about scaling the program, noting that while Nevada tests about 500 candidates annually and has one law school, California tests more than 11,000 and has more than 45 law schools if ABA-accredited, state-accredited, and unaccredited schools are included.
“That may make it challenging for some students to find the supervision they need,” he says.
Merritt disagrees. “Concerns about ‘scaling up’ a structure similar to the one adopted in Nevada are misplaced,” she says. “California has many more law schools and lawyers than Nevada. It also has a much larger infrastructure for admissions.”
Parrish notes the three-pronged plan is not as portable as NCBE tests—but even those bring up questions.
“California is going to have to give some serious thought to reciprocity,” Bakhshian says. Because few states allow graduates of the California-accredited and nonaccredited law schools to sit their bar exams, “it’s unclear how NextGen reciprocity would work. It certainly would be fine for our ABA grads, but there are many people who pass the California bar exam every year who would not benefit.”
‘A measured approach’
The February 2025 exam’s issues included significant concerns around the quality and the accuracy of that exam’s questions, which included some from Kaplan, some from the First-Year Law Students’ Examination and some generated by artificial intelligence. The state bar signed a five-year, $8.25 million agreement with Kaplan to write the hybrid exam.
“Use of the NextGen bar exam reduces these risks because it’s being developed by NCBE,” Parrish says. “There’s more assurance that the questions have been properly developed and appropriately pretested and vetted. If there are problems in the future, it would be attributable to NextGen, not to the state bar or others in California.”
The third option is to follow the original plan put forth in 2024 and create a new exam under the state supreme court’s direction with some form of bridge exam until that has solidified. Bridge options could include using Kaplan-created multiple-choice questions plus California-specific essays and performance tests.
Despite the February debacle, California’s contract remains intact. While some worry about the Kaplan questions’ integrity, Bakhshian says, she thinks it could be tempting for the committee of bar examiners and the board of trustees to have the Kaplan questions replace the MBE.
“It avoids the harder decisions. It avoids having to analyze the Nevada plan. It avoids having to look at how it could be adapted to the California plan. It avoids having to decide whether the NextGen innovation is worthwhile or not.
“It is by far the worst option,” she says. “I am hoping that we will not miss this opportunity to do something better in California.”
Yet all agree the state bar is taking the decision process seriously, especially after the perceived rush of the launch of the hybrid exam.
“There is a measured approach here,” Bakshian says. “You have to do that with such a significant decision.”
Write a letter to the editor, share a story tip or update, or report an error.
