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

Glad to join in on the virtual  symposium that launched earlier this week. I come to this with a bit of experience in bar preparation.  I've helped put together bar preparation lectures for a bar prep company on business associations topics before.  Business law has been tested as a component of the Multistate Essay Examination (MEE) for some time now.  The outline for the future bar exam looks different from the outline for business law subjects tested on the MEE.  Here are some things that the MEE now includes that the draft outline omits:

1. Duty of Obedience
2. Inherent Agency
3. Limited Partnerships
4. Limited Liability Partnerships
5. Cumulative Voting
6. Financing
7. Dissolution
8. Transfer Restrictions

This isn't a comprehensive list. The outline is generally shorter and covers less than the subjects flagged as being on the MEE.  This of course raises questions about why these areas are not important enough to make the cut.  Some of these I would cut myself, such as the duty of obedience and inherent agency doctrines.  But I would be interested to know how the NCBE arrives at the decision that some of these subject headings merited inclusion on the MEE, but do not merit inclusion on the future bar exam.  I don't think we should keep testing things simply because it has been tested in the past, but I would like to have some understanding about how we decide what we should be testing in the future.  A lack of clarity about how we decide what to test may contribute some to the skepticism Dean Fershée and others now feel about the exam.

Business law also appears under-developed in comparison to other areas.  The guidance for civil procedure frequently includes descriptions about what the subjects include.  We don't have the same level of detail for business law.  This leaves us guessing at what could end up within those topics. 

I'd like to join Joan and Joshua in pleading for some guidance on what this stuff means.  Take LLC fiduciary duties.  Under Delaware law, LLCs have fiduciary duties as a default.  Under Nevada law, they do not.  If the exam will test LLCs and fiduciary duties, what is the rule?  State law varies enormously here.  If they're going to enshrine Delaware law for this purpose, they should say so.

The way I figured out how to give guidance when putting bar preparation materials together was to go back and read MEE analysis of their own questions.  You can access the stalest guidance on the website for free.  To get more clarity from them, I assume you have to pay.  Will the MEE analysis be a good guide to what they mean with these new areas?  I'd hope so.