The Bar Examination and the Dream Deferred: A Critical Analysis of the MBE, Social Closure, and Racial and Ethnic Stratification
bar exam cut scores, minimum competence, social closure, diversity in the legal profession, legal market, anti-competitive practices, disparate impact
In this article, the author applies social closure theory to help explain why more than a dozen states have recently enacted more stringent bar exam passing standards and why others are considering similar changes. While higher standards are usually advocated as a way to protect the public from lower student "quality," the author applies social closure theory and argues that changes in passing standards are a response to a perceived oversupply of lawyers, especially among solo practitioners. In the 1990s, crowding among solo practitioners reached record levels, and real earnings eroded substantially. The author then links this labor market analysis to a critical examination of the knowledge claims that justify the bar exam to the legal profession and the public at large. The article's conclusion is that the psychometric research sponsored by the National Conference of Bar Examiners consistently minimizes and obscures the disparate impact and unfairness of the bar exam for people of color.
William C. Kidder, The Bar Examination and the Dream Deferred: A Critical Analysis of the MBE, Social Closure, and Racial and Ethnic Stratification, 29 Law & Soc. Inquiry 547, 590 (2004)