NCBE's New Content Scope Outline: What's New and What's No Longer Being Tested
The National Conference of Bar Examiners recently published its preliminary Content Scope Outlines for the next generation of the bar exam on its website. The outlines focus on the breadth of material to be covered on the new exam in eight areas of legal knowledge, known as Foundational Concepts and Principles, and seven categories of practical skills and abilities, known as Foundational Skills.
A final version of the outlines will be published after the public comment period. The new exam is scheduled to be administered in 2026.
The NCBE’s preliminary Content Scope Outlines is the result of a three-year study that the NCBE began in 2018 to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in the 21st century.
The most noticeable change to the content planned for the new exam is the number of subjects tested. The current Uniform Bar Exam, which the NCBE produces, tests 12 different subjects between the multiple-choice (Multistate Bar Examination) and essay (Multistate Essay Examination) sections.
The new exam, however, only retains eight of those 12 subjects. The exam will retain all seven of the MBE subjects but only Business Associations among all the MEE subjects. That means the new exam will test the following subjects:
Civil Procedure;
Constitutional Law;
Contracts (including Article 2 of the Uniform Commercial Code);
Criminal Law and Procedure;
Evidence;
Real Property;
Torts; and
Business Associations (which includes Agency, Partnership, and Corporations).
The new exam will no longer test:
Conflict of Laws;
Family Law;
Secured Transactions;
Trusts; and
Wills.
A comparison of the NCBE’s preliminary Content Scope Outlines with its current MEE Subject Matter Outline and MBE Subject Matter Outline reveals topics within the eight subjects that will be tested on the new exam as well as topics on the current exam that won't be tested on the new exam.
Here’s a summary of what’s new and what’s no longer being tested, at least from a preliminary standpoint:
Civil Procedure
The NCBE’s preliminary Content Scope Outline has added a new testable area in Civil Procedure: “State subject-matter jurisdiction.” Under this area, The NCBE has indicated that examinees should have a general understanding of state courts’ general jurisdiction, as distinct from federal courts’ limited jurisdiction, as well as the existence of specialty state courts such as probate courts." This new topic is interesting because the subject of Civil Procedure on the bar exam has commonly been understood as testing only Federal Civil Procedure.
While one new area has been added to the Civil Procedure outline, several areas have been preliminarily removed. Under “Pretrial procedures,” the subtopics of “Adjudication without a trial” and “Pretrial conference and order” no longer appear in the preliminary Content Scope Outline. Under “Jury trials,” the subtopics of “Selection and composition of juries” as well as “Requests for and objections to jury instructions” are eliminated. Post-trial motions, including motions for relief from judgment and for new trial, are conspicuously missing from the preliminary outline. And, finally, “Verdicts and judgments” are limited to default judgments and claim and issue preclusion—while the subtopics of “Jury verdicts—types and challenges” and “Judicial findings and conclusions” are removed from the preliminary Content Scope Outline entirely.
Constitutional Law
Like Civil Procedure, the NCBE’s preliminary Content Scope Outline has added a new testable area in Constitutional Law. Under its preliminary outline, the NCBE will test the powers of administrative agencies. According to the NCBE, this new topic requires examinees to have a general understanding of the roles of administrative agencies: as executive enforcers of law and regulations, as “legislators” with rule-making authority (including Chevron and the nondelegation doctrine), and as “judges” conducting hearings and issuing decisions.
As a trade-off (potentially), the NCBE has removed several topics, mostly under the current topic of “The separation of powers” from the current MBE Subject Matter Outline for Constitutional Law.
Under the preliminary outline, questions concerning legislative powers will be focused on Congress’ commerce, taxing, and spending powers and its power to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments. This means the following Congressional powers listed in the MBE Subject Matter Outline will no longer be tested: “War, defense, and foreign affairs powers” and “Other powers” (whatever “other” might have included).
Additionally, questions concerning the powers of the president will be limited to the president’s power as commander in chief and the president’s power to appoint and remove officials. The following presidential powers are no longer tested: powers under the “take care” clause as well as the president’s treaty and foreign affairs powers.
Finally, the preliminary outline doesn't include any information about federal interbranch relationships, or the subtopics currently testable on the existing bar exam: “Congressional limits on the executive”; “The presentment requirement and the president’s power to veto or to withhold action”; “Nondelegation doctrine”; and “Executive, legislative, and judicial immunities.”
Contracts
Contracts in the NCBE’s preliminary Content Scope Outline seems largely unchanged from the current MBE Subject Matter Outline for Contracts.
Criminal Law
The NCBE’s preliminary Content Scope Outline has added two new testable areas in Criminal Law. First, the examiners now specifically identify “Burdens of proof and persuasion” as testable concept. According to the NCBE, examinees are now required to know the differences between reasonable suspicion, probable cause, and proof beyond a reasonable doubt. This topic also includes a defendant’s right to present evidence. Second, the examiners now identify “Operating a motor vehicle while impaired or under the influence, and vehicular manslaughter” as a new statutory crime that examinees need to know.
But while the NCBE has required examinees to know a new crime, it has eliminated several crimes from the list that they need to know. Specifically, rape, statutory rape, kidnapping, and arson are removed from the preliminary Content Scope Outline. Oddly, solicitation is removed from the list of inchoate crimes. (Examinees still need to know attempts and conspiracy.) Finally, principles regarding mental disorders and causation are also eliminated from the new exam.
Criminal Procedure
Criminal Procedure in the NCBE’s preliminary Content Scope Outline seems largely unchanged from the current MBE Subject Matter Outline for Criminal Procedure with one exception. The preliminary Content Scope Outline now requires examinees to understand the right to disclosure of exculpatory and impeachment evidence.
Evidence
The NCBE has removed the following evidentiary topics from its MBE Subject Matter Outline for Evidence in putting forth its preliminary Content Scope Outline:
Issues related to the presentation of evidence, including Presumptions; Mode and order (e.g., Control by court; Scope of examination; Form of questions; and Exclusion of witnesses); and proceedings to which evidence rules apply;
Admissibility of prior sexual misconduct of a defendant or past sexual conduct of a victim; and
Other privileges except those concerning spousal immunity and marital communications; attorney-client and work product; and physician/psychotherapist-patient.
Real Property
Can it be that examinees no longer need to know the Rule Against Perpetuities? Maybe! RAP is not specifically identified in the NCBE’s preliminary Content Scope Outline, so examinees can only hope.
In fact, not only is RAP not including in the preliminary outline, but the preliminary Real Property outline has also removed many other areas that are currently identified in the MBE Subject Matter Outline for Real Property.
Here is a listing of what’s no longer included in the preliminary Content Scope Outline when it comes to Real Property:
Rule against perpetuities: common law rule and statutory reforms
Conflicts of law related to disputes involving real property
Property owners’ associations and common interest ownership communities
Profits (although easements and licenses are still tested)
Zoning
Options and rights of first refusal and fitness and suitability issues in real estate contracts
Installment land contracts
Absolute deeds as security
Security relationships
Transfers by mortgagors and mortgagees
Discharge of the mortgage
Drafting, review, and negotiation of closing documents
Special title problems (including estoppel by deed and judgment and tax liens)
On the flipside, the NCBE has specifically added the following into the new outline: “Mortgage theories: title, lien, and intermediate.” In reality, however, this area isn't a new testable area, as examinees’ knowledge of title theory was tested in an essay question on the February 2020 Multistate Essay Exam.
Torts
The NCBE’s preliminary Content Scope Outline has expressly added a new testable area in Torts: “Damages in tort actions.” While damages have previously been tested on the bar exam, damages is not specifically identified in the current MBE Subject Matter Outline for Torts. Under “Damages in tort actions,” the NCBE now requires examinees to understand the types of damages that are recoverable in tort actions and their proper roles, as well as common standards for obtaining them and potential limitations (i.e., tort reform). Examinees also need to understand punitive damages and compensatory damages (including medical expenses, pain and suffering, emotional distress, property damage, loss of enjoyment, and loss of consortium) as well as unrecoverable harm (including attorney’s fees and recovery for pure economic loss).
Conspicuously missing from the preliminary Content Scope Outline is assumption of risk and several torts that have been previously tested in both multiple-choice and essay formats—defamation, invasion of privacy, and intentional interference with business relations. (It should be noted that defamatory speech still appears in the preliminary Constitutional Law outline.)
Business Association: Agency
The NCBE’s preliminary Content Scope Outline is largely identical to the MEE Subject Matter Outline for Agency. However, the MEE Subject Matter Outline for Agency specifically identifies “duty of obedience” as one of the fiduciary duties between principal and agent that is tested on the current exam while “duty of obedience” is conspicuously missing in the new Content Scope Outline. It’s unclear at this point whether “duty of obedience” will no longer be tested or whether this concept is simply subsumed into the fiduciary duties of care and loyalty, which are expressly identified in both outlines.
Business Association: Partnership
The NCBE’s preliminary Content Scope Outline seems to focus exclusively on general partnerships, with the three major outline headings being “Nature of general partnerships,” “Power and liability of general partners,” and “Rights of general partners among themselves” (italics added). The current MEE Subject Matter Outline for Partnership requires knowledge of the creation of limited partnerships and limited liability partnerships.
The “Rights of partners among themselves” appear to be reduced in coverage, too. The preliminary Content Scope Outline has eliminated the concepts of “Profits and losses” as well as “Duty of care” that appear in the current MEE Subject Matter Outline.
Also not included in the preliminary Content Scope Outline are testable areas about “Dissolution” and “Special rules concerning limited partnerships.”
Business Association: Corporations
Corporations on the NCBE’s preliminary Content Scope Outline seems to eliminate many areas on the current exam that deal with stocks and securities. Specifically, pre-organization transactions are being retained on the new exam, but this area seems to be limited to promotor liability and their fiduciary duties. The other area under “pre-organization transactions” in the current MEE Subject Matter Outline for Corporations—“Subscriptions for shares”—isn't included in the preliminary Content Scope Outline.
Other areas not included in the preliminary Content Scope Outline—but included on the current exam—are testable concepts regarding “Close corporations and special control devices” (such as Share transfer restrictions; Special agreements allocating authority; Resolutions of disputes and deadlocks; and Option or buy/sell agreements) and most information under “Organizational structure including relations between parents and subsidiaries” (such as Mergers and consolidations; Sales of substantially all assets; Recapitalizations; Exchanges of securities; and Dissolution of organization).
