Joy Sabino Mullane (Villanova), The Unlearning Curve: Tax-Based Congressional Regulation of Executive Compensation, 60 Cath. U. L. Rev. 1045 (2011):

Congress has repeatedly enacted tax penalties on executive compensation, and threatens to continue doing so. Congress’s stated goals in enacting the various tax penalties were to rein in and shape executive compensation packages. Although each of the tax penalty provisions is superficially different in numerous ways, they ultimately operate in fundamentally the same manner. In each instance, the relevant provision aims to increase the after-tax cost of engaging in the targeted conduct. In theory, the increased costs would deter companies and their executives from engaging in those practices. However, time and time again, companies and their executives have shown Congress that they are immune or indifferent to the increased cost.

This Article considers why Congress continues to enact the same types of tax penalties on executive compensation, when such provisions are ineffective, inefficient, and inequitable. It explores, in particular, whether such legislation serves a meaningful instrumental or expressive function, as a possible justification for the repeated use of the tax system to attempt to influence executive compensation practices. It reveals that none of the various tax penalty provisions has a meaningful instrumental or expressive effect. They have, however, generated significant negative consequences. Accordingly, the Article concludes that the tax code is a particularly poor legislative tool for trying to regulate executive compensation practices, something Congress has seemingly failed to learn from its experiences in using the tax code. If Congress wants to effectively alter corporate and executive behavior, it needs to do something different than what has already been tried and failed.