New York Mulls Return of Bar Exam’s In-Person State Component

The New York State Bar Association is pushing for a more rigorous bar exam ahead of state court system hearings on the future of the test, by pushing to revive an in-person, state-specific component.

Beginning Monday, an advisory panel will host three meetings about state bar admission requirements, including the advantages and disadvantages of—and potential alternatives to—the current New York law-specific online course and exam. The committee will publish a report by September with its recommendations.

The state bar’s push comes as other states are mulling alternate licensing pathways that would make the exam voluntary.

New York’s transition in 2028 to the NextGen exam from the Unified Bar Exam is a perfect opportunity to bring back the in-person, state-focused test, said David Marshall, co-chair of the association’s Committee on Legal Education and Admission to the Bar. That portion is currently done online, separate from the main bar exam.

“What most people practice is state and local law, not federal law. So the fact that there isn’t a rigorous exam of state law knowledge, we think, is a real defect with respect to the current New York law exam,” Marshall said.

But Deborah Merritt of the Ohio State University Moritz College of Law said she “very much hopes” that doesn’t happen since it “won’t accomplish their goal” of ensuring people understand New York law. Merritt, who’s also a member of the Collaboratory On Legal Education and Licensing for Practice, has consulted with the court’s advisory committee about bar exam changes and potential vendors.

“If people are studying for both NextGen and the New York-specific component, they’re not going to remember either as well.”

Combining the tests would undermine the goal of getting “people to understand more things in New York law,” Merritt said. Students most likely would retain more information for the NextGen portion because it would account for three-quarters of the test, she added.

New York Practice

Since 2016, the exam has been split up into two separate components: the two-day Unified Bar Exam portion that’s held twice a year, and an online, open-book New York practice-of-law exam that’s held on different dates.

The New York State Board of Law Examiners provides a 200-page outline of New York law course materials that students print out and mark up with different-colored tabs for use during the online exam, Marshall said. There are concerns about the integrity of the testing process and whether test-takers are taking it seriously.

Marshall said there should be more focus on the original point of licensing, which is to protect the public from incompetent lawyers.

“What we should be focusing on is not how hard or easy it is for the students, or how expensive or cheap it is to prepare or how much time it takes. Those things—while not completely irrelevant—shouldn’t be the primary focus of what a bar exam is doing,” he said.

The NextGen test is nine hours long, administered over two days. That leaves three hours on the second day to give a New York exam, Marshall said.

Merritt pointed out that it would be expensive to develop and vet a new test, and would require more test proctors and locations.

Rather than changing to an in-person exam, Merritt recommends creating an online course that’s better than the current 17-hour training comprising pre-recorded lectures that’s provided by the New York State Board of Law Examiners.

“The game has been upped over the last 10 years,” she said. “We know so much more about online education, and vendors are creating interesting and interactive courses you could do for New York.”

Expanding Access

A more rigorous New York exam is a step back for increasing access to the legal profession, said Tolu Lawal and Al Brooks, co-leads of Unlock the Bar—a coalition of lawyers and law students that advocates for eliminating the character-and-fitness portion of the bar application to reduce barriers to the legal profession for people who have been arrested or incarcerated.

“Frequently, making something more rigorous means it’s going to become more exclusive,” Brooks said. He and Lawal pointed to character-and-fitness questions about criminal convictions as potentially exclusionary for law students that engage in and are punished for activism, including more recently pro-Palestinian protests on college campuses.

The Court of Appeals’ hearing notice doesn’t specifically mention the character-and-fitness portion of the bar application as a topic it is seeking comment on.

Cost is another concern. In-person tests that are only held twice a year can be “terribly hard on lots of different types of people,” including caretakers and those with disabilities and chronic illness who have to fight to get accommodations, said Merritt.

If there are major changes to the bar exam, law schools should have adequate notice so they can prepare their curriculum and their students, said Susan Landrum, executive director of academic success and bar programs at Fordham University School of Law. Classes at Fordham, she said, already incorporate examples of New York law because faculty “know those examples are relevant to students,” and students are advised early on to take law clinics, externships, and other skills-focused courses.

“If I’m trying to make sure students are prepared,” she said, “it’s a lot easier to give someone those expectations three years before they have to have money saved.”