Bobby Lewis Dexter (Loyola-New Orleans) has published Tax Terrorism: Nasty Truths About Investor Control Theory and the Accommodation of Social Security Privatization, 57 Mercer L. Rev. 553 (2006).  Here is the Conclusion:

As a doctrine, investor control lacks firm theoretical footing. While market developments and taxpayer abuse of prevailing tax rules made change necessary, Congress effectively solved the problem by enacting TEFRA, which imposed taxes (and penalties) on premature access to variable contract earnings without resort to investor control concepts. In essence, Congress embraced and applied an undeniable access rationale, an approach fully consistent with tax theory fundamentals. The construction and deconstruction of an investor control doctrinal complex in a manner that appears to correspond conveniently with significant tax legislation has the undesirable effect of making fundamental tax theory appear to be the pawn of prevailing political sentiment. In much the same way Revenue Ruling 81-225 achieved a desirable tax result consistent with subsequent TEFRA rules governing access to variable contract earnings, Revenue Ruling 2003-91 appears to be a pre-emptive theoretical accommodation of Social Security privatization and the individual investor discretion privatization contemplates. Otherwise, the pronouncement represents a sudden, inexplicable liberalization of well-established rules.

An undeniable access rationale makes the most sense in terms of taxing variable contract earnings, especially when current Code-based rules tax and penalize abusive contract use, protect traditional use, and minimize the likelihood of rule circumvention. The investor control doctrine–with its obsessive focus on public availability and its recent introduction of gag orders–is long beyond its heyday. TEFRA-based rules have effectively reduced "improper variable contract use" to a tax and penalty. Those rules should serve as effective deterrents to those who would abuse variable contracts. The investor control doctrine should not, however, continue to impede investor-guided growth in retirement savings.