Monday, March 28, 2022

Business Associations & Relationships on the Future Bar Exam: A Virtual Symposium (Part I)

The National Conference of Bar Examiners (NCBE) recently released content summaries of the material proposed to be tested on the future bar exam.  Labeled Content Scope Outlines (the "Outlines"), they are available here.  Among them, are content descriptions under the heading "Business Associations & Relationships," pp. 7-9 of the Outlines.  This post introduces a series of posts over the next week or two on those specific parts of the Outlines.  I will start the ball rolling by making four opening comments below, each focused on a general issue.

  • Testing Guidance - The Outlines designate topics that will be "tested in a way that assumes examinees know the details of the relevant doctrine without consulting legal resources" and distinguishes them from ones that will be "tested in a way that assumes examinees have general familiarity with the topics for purposes of issue-spotting or working efficiently with legal resources provided during the exam."  I find this designation and separation helpful.
  • High-Level Content Guidance - Given that Delaware corporate and limited liability company law  (a) are national standards and (b) include provisions that are different from those in the Model Business Corporation Act and the Uniform Limited Liability Company Act, respectively, I favor letting examinees know which sets of rules and norms apply to their exam responses.  The Outlines do not offer this information.
  • Topic Annotations - At various points, the Outlines offer a short comment about the specific contents of a particular topic.  For example, they note that the topic "Vicarious liability of principal for acts of agent . . . includes distinctions between employees and independent contractors. This topic also includes delegable/nondelegable duties."  These statements are useful, although some of the annotations may still leave too much to the imagination.
  • Terminology - The Outlines use "articles of incorporation" to describe a chartering document for a corporation.  Yet, Tennessee uses the term "charter" (arguably the generalist term) and Delaware uses the term "certificate of Incorporation."  I wonder if it would be better to merely use a generic or general descriptive term like "chartering document."  Similar issues exist with respect to limited liability company "articles of organization," "certificates of formation," and "operating or members agreements."  Along similar lines, I would like to see veil piercing referred to in just that way and not as "piercing the corporate veil" when it is used to describe the veil of limited liability in limited partnerships or limited liability companies.

These comments should be enough to get us started.  I will plan to say more in a subsequent post, if time permits.

Please note that comments on the scope and depth of the subjects to be tested are being solicited and are welcomed by the NCBE.  The comment period closes on April 18, 2022.  Comments can be submitted here.

More information about the NCBE's project on the next generation of the bar exam can be found here.

Agency, Business Associations, Joan Heminway | Permalink


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