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60 Hastings L.J. [i] (2008-2009)

handle is hein.journals/hastlj60 and id is 1 raw text is: HASTINGS LAW JOURNAL VOLUME 6o 2008-2009 TABLE OF CONTENTS ARTICLES THE CLEAVER, THE VIOLIN, AND THE SCALPEL: DUTY AND THE RESTATEMENT (THIRD) OF TORTS A aron D . Tw erski ............................................................................... I This Article takes issue with the approach taken by the proposed final draft of the Restatement (Third) of Torts that insists that no- duty or limited duty rules should be formulated only when a court can promulgate clear, categorical, bright-line rules that are applicable to a general class of cases. In this Article I demon- strate that no-duty rules may often have to be formulated and tailored to the facts of a specific case. I respond to the critics who are concerned that no-duty rules that are fact specific allow courts to invade the province of juries whose task it is to apply law to facts. I contend that the kind of policy factors that give rise to no-duty determinations are very different than those a jury considers when deciding whether a defendant's conduct was neg- ligent. MEASURING THE TAX SUBSIDY IN PRIVATE EQUITY AND HEDGE FUND COMPENSATION Thomas J. Brennan and Karl S. Okamoto ....................................... 27 This Article offers a new analysis of the debate over the taxation of private equity and hedge fund managers. We provide an ana- lytical model that allows us to compare the relative risk-reward benefit enjoyed by these fund managers and other managers. We look to relative benefits in order to determine the extent to which the current state of the world favors the services of a fund manager over these other workers. Our conclusion is that private equity and hedge fund managers do outperform other workers on a risk-adjusted, after-tax basis. We assume that over time compensation of private equity and hedge fund managers should approach equilibrium on a risk-adjusted basis with other compa- rable compensation opportunities. In the meantime, however, our model suggests that differences in tax account for a substan- tial portion of the disjuncture that exists at the moment. It also

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