Executive Compensation: If There's a Problem, What's the Remedy? The Case for "Compensation Discussion and Analysis"

30 Pages Posted: 12 Apr 2005

See all articles by Jeffrey N. Gordon

Jeffrey N. Gordon

Columbia Law School; European Corporate Governance Institute (ECGI)


High levels of executive compensation have triggered an intense debate over whether compensation results primarily from competitive pressures in the market for managerial services or from managerial overreaching. Profs. Lucian Bebchuk and Jesse Fried have advanced the debate with their recent book, Pay Without Performance: The Unfulfilled Promise of Executive Compensation, which forcefully argues that the current compensation levels are best explained by managerial rent-seeking, not by arm's length bargaining designed to create the optimum pay and performance nexus. This paper expresses three sorts of reservations with their analysis and advances its own proposals. First, maximizing shareholder value is not, as a positive or normative matter, a sufficient framework for understanding the controversy or devising a remedy. Second, many of the compensation practices identified by Bebchuk and Fried as veritable smoking guns of managerial power may have benign explanations. Third, even accepting that the present corporate governance apparatus needs improvement in the executive compensation area, the better remedy is not a wholesale expansion of shareholder power, but a tailored serious of measures designed to bolster the independence in fact of the compensation committee. Most important, the SEC should require proxy disclosure of a Compensation Discussion and Analysis statement (CD&A) signed by the members of the compensation committee (or by the responsible independent directors for firms without a compensation committee). Such a CD&A ought to collect and summarize all compensation elements for each senior executive, providing bottom line analysis. This process ownership, reputation-staking, and publicity will strengthen the committee's hand against managerial pressure and will elicit both shareholder and public responses that necessarily contribute to the compensation bargain. In addition to the CD&A, serious thought should be given to a shareholder approval vote on the CD&A, following the new UK practice.

Keywords: Executive compensation, corporate governance, stock options

JEL Classification: K22, M52

Suggested Citation

Gordon, Jeffrey N., Executive Compensation: If There's a Problem, What's the Remedy? The Case for "Compensation Discussion and Analysis". Journal of Corporation Law, Summer, 2006, Columbia Law and Economics Working Paper No. 273, Columbia Public Law Research Paper No. 05-90, ECGI - Law Working Paper No. 35/2005, Available at SSRN: https://ssrn.com/abstract=686464

Jeffrey N. Gordon (Contact Author)

Columbia Law School ( email )

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European Corporate Governance Institute (ECGI)

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