The proposed exam will also eliminate family law and trusts and estates as tested subjects. Tens of millions of Americans live in rural areas and small towns, where legal needs typically revolve around family law (marriage, divorce, custody and adoption) and probate matters (estate administration, guardianships and conservatorships). In many rural areas, residents’ access to justice depends on the ability of only a handful of practicing attorneys. These residents need to know that new lawyers have the foundational knowledge to serve their needs or at least the threshold understanding necessary to refer them elsewhere. If these areas of legal practice are eliminated from the exam, it will be difficult to replenish the requisite knowledge in our lawyer ranks.
But perhaps the biggest concern is the NCBE’s use of the NextGen exam to advance its “diversity, fairness and inclusion” agenda. Two of the organization’s stated aims are to “work toward greater equity” by “eliminat[ing] any aspects of our exams that could contribute to performance disparities” and to “promote greater diversity and inclusion in the legal profession.” The NCBE reinforces this message by touting its “organization-wide efforts to ensure that diversity, fairness, and inclusion pervade its test products and services.”
What does all this mean—and how does it have any relation to the law? Based on the diversity workshop at the NCBE conference, it means putting considerable emphasis on examinees’ race, sex, gender identity, nationality and other identity-based characteristics. The idea seems to be that any differences in group outcomes must be eliminated—even if the only way to achieve this goal is to water down the test. On top of all that, an American Civil Liberties Union representative provided conference attendees with a lecture on criminal-justice reform in which he argued that states should minimize or overlook would-be lawyers’ convictions for various criminal offenses in deciding whether to admit them to the bar.