NCBE Statement on SCOTUS Decisions and the Bar Exam
The National Conference of Bar Examiners released the following announcement yesterday regarding the recent United States Supreme Court decisions:
NCBE Statement on SCOTUS Decisions and the Bar Exam
NCBE has released the following statement regarding the timeline by which new US Supreme Court decisions might be reflected on the bar exam: NCBE-developed MBE, MPT, and MEE questions typically are drafted, revised, and finalized over an approximately three-year period, including pre-testing of MBE items on a live exam prior to administration as scored items. For more information, see:
Yesterday’s announcement isn’t as strongly worded as its announcement prior to the July 2022 administration, in which it clearly and succinctly stated that “Examinees taking the NCBE-developed July 2022 MBE, MPT, and MEE will not be required to be familiar with this term's US Supreme Court decisions.
However, yesterday’s announcement reiterates that the timeline to develop a final, scoreable question on the MBE prevents any recent SCOTUS decisions to appear on the February 2023 bar exam except as unscored, “pretest” questions.
Again, the NCBE announcement only applies to NCBE-written examinations, which includes the MBE, the MEE, and the MPT. Examinees preparing for state-authored exam questions or sitting in a non-UBE jurisdiction should contact the testing jurisdiction for further guidance. For example, in California, bar applicants are expected to know the law in effect at the time the California Bar Examination is administered (i.e., current law). Therefore, any judicial decision, statute, rule, or regulation that is in effect in February 2023 will be "current law" for the February 2023 California Bar Examination.
As a reminder, though, the two major areas impacted by the most recent SCOTUS term are in the areas of abortion and religion (specifically, the Establishment Clause’s Lemon Test).
