Fail the bar exam? Retake might be an entirely different test
Last month, Connecticut, Guam, Idaho, Maryland, Missouri, the Northern Mariana Islands, Oregon, Palau, the U.S. Virgin Islands and Washington administered the Uniform Bar Exam for the very last time. So what happens to those who didn’t pass?
As scores for the February exam are revealed, candidates in those 10 jurisdictions who spent months prepping for the legacy exam and did not pass will likely face a new challenge—taking the brand-new NextGen UBE Exam, which emphasizes skills instead of memorization.
“Retaking the exam is always a hardship. Now we are entering an era of uncertainty that will unduly burden those retaking the exam,” says Susan Smith Bakhshian, director of bar programs at Loyola Law School in Los Angeles. “Retakers will face very different exam formats, changing cut score requirements, and more.”
“It will be even more important than ever that repeat takers don’t just follow the same bar prep plan as the last time,” Meghan Short says. (Photo courtesy of the AccessLex Institute)Meghan Short, managing director of product and customer experience at Helix Bar Review, agrees.
“One of the biggest strengths that a retaker has is that they’ve seen the exam before and know what to expect. That won’t be the case for those who are switching to the NextGen exam,” she says.
In July 2024, the most recent date for which figures are available, a total of 50,620 test-takers took the UBE nationwide, and 34,643—or 68%—passed, according to the National Conference of Bar Examiners.
Different by design
By design, the NextGen UBE differs from the legacy UBE, as that test is now known. While both have multiple-choice questions, the NextGen uses integrated question sets instead of long, separate essays. And instead of 12 hours of testing over two full days, the new test is nine hours over one and a half days, with two three-hour sessions on the first day and one three-hour session on the second day.
“It will be even more important than ever that repeat takers don’t just follow the same bar prep plan as the last time,” Short says. “It might be hard for people coming off a cycle of bar exam prep to ‘let go’ and accept that they don’t need to know all the material inside and out.”
She advises that repeat takers transitioning to the new exam instead practice the new types of questions early and often to find their strategic approach instead of the intense focus on memorization they used to prep for the legacy exam.
Last week, NCBE released findings of the NextGen beta test, conducted in four cities with 1,500 examinees, stating that the systems and processes performed well in a live administration, the platform was “intuitive and easy to use,” and grading systems were successful.
Jurisdiction shopping?
Although 48 jurisdictions ultimately plan to administer the NextGen, many states will still administer the legacy UBE and its components—the Multistate Essay Examination, the Multistate Performance Test and the Multistate Bar Examination—until it sunsets in July 2028.
That leaves the door open to jurisdiction shopping, says Sean Silverman of Silverman Bar Exam & LSAT Tutoring.
“It wouldn’t surprise me if students in states that administer NextGen choose to take the legacy UBE elsewhere and then transfer their score to the state where they want to practice,” Silverman says.
Adding to the attraction of retaking the legacy UBE: Starting in July, the Multistate Essay Exam will test fewer subjects, aligning it more with the NextGen test.
“This legacy UBE through July 2028 is a bit of a gift: far less to study and with none of the burdens that come with trying to prepare for a new exam,” Silverman told the ABA Journal. “Many might opt to take the current UBE up until the date that that test is retired.”
While each jurisdiction sets its own policies regarding eligibility to take the bar exam, “to our knowledge, no jurisdiction has a policy limiting repeat test-takers to those who have previously tested in that jurisdiction,” Faye McCray, NCBE chief communications officer, told the ABA Journal.
While Short “can see how someone would also weigh the value of studying for the same test again,” retakers also need to consider where they are in the character and fitness process, she says.
“If they’ve already been cleared by the jurisdiction where they just sat, they may not want to start the time and labor-intensive process in another jurisdiction at the same time that they’re studying for the July exam,” she says.
While the NextGen’s score can often be transferred and “is equated to ensure that an official NextGen UBE score earned in any jurisdiction and at any administration will have the same meaning as any other NextGen UBE score,” according to NCBE, every jurisdiction’s policies about pass scores and portability are different. For instance, New York has announced it will not accept transferred NextGen scores from tests administered prior to July 2028.
Frustration
Everyone agrees that practicing the new format is key. But with new test set to go live in July, academics remain frustrated by the lack of sample questions and other resources that can be widely shared.
“One huge hurdle is the lack of practice exams. The NCBE has released only a handful of practice exams. Many more are needed, and they are needed now,” Loyola Law’s Bakshian says.
NCBE released a set of free sample questions on its website, McCray says. Additional practice questions are available as part of NCBE’s licensed study aids.
“Four NextGen practice sets are available now, and two additional sets will be published in May and June,” she says, adding this is consistent with how NCBE has historically distributed bar exam preparation materials. “Law schools may choose to license those materials for use with their students, and candidates can also access them directly through NCBE.”
“It’s frustrating when we get sample questions that have licensing requirements attached to them,” Brian Gallini says. (Photo by KJ Johnson)
“It’s frustrating when we get sample questions that have licensing requirements attached to them,” says Brian Gallini, dean of Quinnipiac University School of Law. “So you have to pay to scalably disseminate those. That doesn’t feel great.”
And a study aid known as sourcebooks are only available through publisher West Academic, an NCBE partner.
Students access the sourcebooks for free if they attend law schools that have a relationship with West Academic—but not every school does, Gallini notes. The sourcebooks can also be purchased for $45 each.
“And even so, they don’t have a sourcebook for every single subject. It’s like all these little octopus tentacles. It’s just frustrating.”
NCBE’s McCray told the ABA Journal that the torts sourcebook has just been published, one on civil procedure will be available later this month, and others will be released in the months ahead.
And more questions are becoming available, she adds, with additional study aids scheduled for release later this spring.
Short says she has noticed an uptick of requests for NextGen tutors on listservs, largely from law school professionals who have students seeking these services.
“Whenever something is unknown, diligent law students who are used to overpreparing are going to look for all the resources they can find,” she says. “But the reality of the situation is that no one offering tutoring services has seen this exam. We’re all working off the same information.”
Silverman says he doesn’t expect much to change until the legacy exam is fully retired, but it’s unclear what will happen after that.
“The NextGen test incorporates skills far more than the current UBE, and what determines whether tutors continue to see demand is whether students feel that they need tutoring to help with those skills. I’ll note, though, that surprisingly, multiple-choice plays a significant role on the NextGen exam, and I’d expect that students will continue to need help with that portion.”
Despite the unknowns, switching formats could be a positive for some repeaters. “This would be a competence reset,” says Kimberly Hytree, Kaplan’s executive director of legal programs. “It’s a wonderful opportunity for students who may have previously struggled. They might find success when they shift their focus to more of these practical and applied skills.”
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