Bar Examination: A Verb, Not a Noun

Abstract

The legal profession, long steeped in tradition, is witnessing a transformative shift in the protocols for licensing new attorneys. Multiple jurisdictions are moving away from reliance on standardized testing as the

sole gateway to law practice, and are developing individualized, and potentially reciprocal, systems of state licensure. Ironically, the planned launch of a new standardized bar exam—the NextGen exam—may have

been a major catalyst in the transformation of licensure pathways. This shift has the potential to realign the regulatory hierarchy in attorney admission. Such a realignment is vital to the preservation of lawyer self-governance, and it offers great promise for a more client-centered focus in legal education. These transformed protocols for attorney licensure reflect evolving generational attitudes about professional competency and an increased appetite for judicial innovation. As with all forward-looking developments, new regulatory protocols will present challenges for the legal profession and the state supreme courts who seek to implement them—the greatest of which might be limited resources and systemic resistance to change.

This Article examines the many new developments in attorney licensure taking place in the United States and offers an account of their advantages and limitations, including their potential impact on multijurisdictional practice. By deconstructing the varied new or improved ways to license new attorneys, this Article will aid state supreme courts and state examining boards that wish to explore exam alternatives. The summary processes and recommendations described offer guidance on the array of licensing measures that are available and the mechanics of their implementation. This Article also pushes back against the normative and reductionist theory of bar examination and applies a new legal realism lens to provide a multimodal roadmap to a co-regulated profession that is free of unnecessarily restrictive barriers to entry. The information presented will aid law students aspiring to become licensed attorneys in determining where and through what modality to pursue licensure. This Article continues an important national conversation about attorney self-regulation and offers new avenues to engage members of the legal profession in their own governance.

Keywords: NextGen, Bar Exam, NextGen exam, NextGen bar exam, Nevada, California, Oregon, Washington, Daniel Webster, Arizona, cut score, UBE, Outsourcing, Self-regulation, attorney regulation, supervised practice, portfolio, SPPE, apprenticeship, bar alternative, alternative pathway, attorney licensure, Marsha Griggs, serendipity, Utah