Time to Start Over on Deferred Compensation

Government regulators would do well to follow simple heuristics like that. Writing good regulations-- good in the sense of promoting the public interest--always presents challenges. Regulators must hit a small but important target where private conduct is brought within appropriate government control, but unnecessary compliance burdens and other deadweight costs are minimized. Even if they see the government\u27s objectives clearly, regulators often have only a limited understanding of the underlying private activities. Moreover, regulators may be unaware of how their rules disrupt or distort those activities in socially harmful ways. Regulators occasionally hit the target exactly. More often, they miss--though not by an intolerably wide margin (good enough for government work, as the saying goes). However, sometimes regulators miss the mark so badly that the only responsible next step is to acknowledge the failure. That is the case with the final regulations under Internal Revenue Code (Code) section 409A. Those regulations are irreparably flawed--so flawed that the best members of the practicing bar cannot make sense of them for basic transactions. When the government issues rules that even experts cannot understand, the government should start over

Executive Compensation Reform and the Limits of Tax Policy

The American Jobs Creation Act of 2004 includes a major attempt to reform the tax rules for deferred compensation arrangements covering corporate managers. This paper examines the tax policy and corporate-governance policy objectives of the reform effort, explores the shortcomings of the legislation, and outlines a different approach for future executive compensation reform

Legislative Organization and Administrative Redundancy

Congress regularly enacts legislation providing for redundant administrative programs. For example, there are more than 100 federal programs for surface transportation, 82 programs to ensure teacher quality, 80 programs to promote domestic economic development, and 47 programs to provide employment and job-training services. Recent high-profile legislation–-such as the financial-industry reform measure and the health-care reform measure–-add new programs without repealing existing ones directed at the same policy goals. Prior academic analyses generally have not considered why Congress pursues redundancy. This article addresses that question through both theoretical and institutional analysis. The article first constructs an organizational theory that attributes redundancy in administrative programs to the congressional committee system. Specifically, the article demonstrates that two critical components of the existing committee system-–fragmented jurisdictions and parliamentary prerogatives–-systematically bias legislative outcomes in favor of redundancy. Building on leading theoretical accounts of congressional committees from political science, the article then presents a novel cost-benefit analysis of this tendency toward redundancy. It shows that redundancy allows legislators to increase distributive favors for constituents and interest groups but that redundancy is also linked to the desirable pursuit of informational efficiency. Thus, the institutional structures facilitating redundancy have mixed effects. Consequently, the article describes and analyzes specific institutional reforms that trade off the distributive costs and the informational benefits associated with redundancy. One approach would subject more legislative decisions to external advisory processes such as that used to close unneeded military facilities. A second and more promising approach would preserve existing committee jurisdictions but would scale back committees’ parliamentary prerogatives, thereby encouraging redundancy in program design but discouraging redundancy in program implementation

Does Planck mass run on the cosmological horizon scale?

Einstein's theory of general relativity, which contains a universal value of the Planck mass, has been so far successfully invoked to explain gravitational dynamics from sub-millimeter scales to the scale of the cosmological horizon. However, one may envisage that in alternative theories of gravity, the effective value of the Planck mass (or Newton's constant), which quantifies the coupling of matter to metric perturbations, can run on the cosmological horizon scale. In this letter, we study the consequences of a glitch in the Planck mass from sub-horizon to super-horizon scales. We first give three examples of models that naturally exhibit this feature, and then show that current cosmological observations severely constrain this glitch to less than 1.2%. This is the strongest constraint to date, on natural (i.e. non-fine-tuned) deviations from Einstein gravity on the cosmological horizon scale.Comment: 5 pages, 1 figur

Redefining Tribal Sovereignty for the Era of Fundamental Rights

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility to Indians, or a simple lack of doctrinal coherence in the Court’s decisions. This Article provides a different explanation. The implicit-divestiture cases represent the Court’s effort to address a trilemma among three incompatible objectives: preservation of the traditional, territorial-based definition of tribal sovereignty, preservation of tribal governments’ placement outside the federalist structure of the constitutional order, and preservation of fundamental rights. The Court has chosen to resolve the trilemma by redefining tribal sovereignty to deny tribal jurisdiction over nonmembers. Whether right or wrong, the implicit-divestiture theory is the Court’s good-faith attempt to preserve as much tribal sovereignty as possible without infringing on fundamental rights or forcing tribal governments into the federalist structure