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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