March 20, 2009
Is 409A Too Tough for Law School?
Posted by Andrew Lund

Thanks again to Gordon and Christine for inviting me to post over the last two weeks.  I wanted to conclude with a post on teaching. 

I'm trying to design an executive compensation syllabus.  I hope the course accomplishes two things: getting students who are generally interested in the subject (and who isn't these days) thinking in a more rigorous way and preparing (a subset of) students to actually practice in the field.  In fleshing out the syllabus, I've run up against a problem - Section 409A of the IRC which establishes rules for deferred compensation.  409A is perhaps the most important topic for compensation lawyers today, touching almost everything that they do.  On the other hand, 409A is probably not such a big deal to the general audience.  Moreover, the regulations are incredibly convoluted even by Treasury's standards (for just a taste, see Michael Doran's summary (hat tip: Paul Caron)).  The rules are so difficult that they've even inspired a blog called 409A Dismay.

Although 409A no longer keeps me up at night like it did when I was practicing, it does pose a problem for me in my current job: how do I teach it?  409A creates splits my two goals.  For the general audience, how do I keep the vast but technical issue from swallowing up all of our class time?  For the people who will be practicing in the field in a number of months, how can I justify not spending more time on this enormous body of law that will soon confront them? 

I'll probably go the minimal route (2 classes) on the theory that most firms with exec comp practices are set up to train incoming associates from scratch.  But I suspect I'll feel bad if/when I tell the class that there's a lot more to be said, but it's too complicated to do in the time we have.     

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