llm in american law & llm in intellectual property september 11, 2009 introduction to u.s. legal...

LLM IN AMERICAN LAW & LLM IN INTELLECTUAL PROPERTY

SEPTEMBER 11, 2009

Introduction to U.S. Legal Sources

Government of the United States

Legislative Branch passes

Laws

A Law and Regulation may

be interpreted by a Decision made by

the Judicial Branch

The Law is given effect by a

Regulation made by the Executive

Branch

Legislative Branch

American Jobs Creation Act of 2004

108-357108 = # of Congress

357 = # of the law

118 Stat. 1418118 = volume

#1418 = page #

Sec. 888 Modification of Straddle Rulesof the Public Law Sec. 1092 (a)(2) of the

United States Code

P.L. 108-357 § 888 = 26 U.S.C. §1092(a)(2)

26 U.S.C. 1092 26 U.S.C. § 1092(d)(3)

(3) SPECIAL RULES FOR STOCK.-For purposes of paragraph (1)-(A)IN GENERAL.- In the case of stock, the term 'personal property‘ includes stock only if

(i) Such stock is of a type that is actively traded and at least 1 of the positions offsetting such stock is a position with respect to such stock or substantially similar or related property or

(ii) such stock is of a corporation formed or availed of to take positions in personal property which offset positions taken by any shareholder.

(B)Rule for Application – For purposes of determining whether subsection (e) applies to any transaction with respect to stock described in subparagraph (A)(ii), all includible corporations of an affiliated group (within the meaning of section 1504(a)) shall be treated as 1 taxpayer.

26 U.S.C. § 1092(d)(3)

(d)(3) SPECIAL RULES FOR STOCK.-For purposes of paragraph (1)-(A)IN GENERAL.-Except as provided in subparagraph (B), the term 'personal property' does not include stock. (B)Exceptions.-The term 'personal property’ includes-(i) any stock which is part of a straddle at least 1 of the offsetting positions of which is-(I)an option with respect to such stock or substantially identical stock or securities, or(II)under regulations, a position with respect to substantially similar or related property (other than stock), and(ii) any stock of a corporation formed or availed of to take positions in personal property which offset positions taken by any shareholder.(C) SPECIAL RULES.-(i) For purposes of subparagraph (B), subsection (c) and paragraph (4) shall be applied as if stock described in clause (i) or (ii) of subparagraph (B) were personal property.

26 U.S.C. § 1092(d)(3)

(d)(3) SPECIAL RULES FOR STOCK.-For purposes of paragraph (1)-(A)IN GENERAL.-Except as provided in subparagraph (B), the term 'personal property' does not include stock. The preceding sentence shall not apply to any interest in stock.(B)Exceptions.-The term 'personal property’ includes-(i) any stock which is part of a straddle at least 1 of the offsetting positions of which is-(I)an option with respect to such stock or substantially identical stock or securities, or(II)under regulations, a position with respect to substantially similar or related property (other than stock), and(ii) any stock of a corporation formed or availed of to take positions in personal property which offset positions taken by any shareholder.(C) SPECIAL RULES.-(i) For purposes of subparagraph (B), subsection (c) and paragraph (4) shall be applied as if stock described in clause (i) or (ii) of subparagraph (B) were personal property.

26 U.S.C. § 1092(d)(3)

(d)(3) SPECIAL RULES FOR STOCK.-For purposes of paragraph (1)-(A)IN GENERAL.-Except as provided in subparagraph (B), the term 'personal property' does not include stock. The preceding sentence shall not apply to any interest in stock.(B)Exceptions.-The term 'personal property’ includes-(i) any stock which is part of a straddle at least 1 of the offsetting positions of which is-(I)an option with respect to such stock or substantially identical stock or securities, or(II) a securities futures contract (as defined in section 234B) with respect to such stock or substantially identical stock or securities, or(III) under regulations, a position with respect to substantially similar or related property (other than stock), and(ii) any stock of a corporation formed or availed of to take positions in personal property which offset positions taken by any shareholder.(C) SPECIAL RULES.-(i) For purposes of subparagraph (B), subsection (c) and paragraph (4) shall be applied as if stock described in clause (i) or (ii) of subparagraph (B) were personal property.

26 U.S.C. § 1092(d)(3)

(d)(3) SPECIAL RULES FOR STOCK.-For purposes of paragraph (1)-(A)IN GENERAL.- In the case of stock, the term 'personal property‘ includes stock only if

(i) Such stock is of a type that is actively traded and at least 1 of the positions offsetting such stock is a position with respect to such stock or substantially similar or related property or

(ii) such stock is of a corporation formed or availed of to take positions in personal property which offset positions taken by any shareholder.

(B)Rule for Application – For purposes of determining whether subsection (e) applies to any transaction with respect to stock described in subparagraph (A)(ii), all includible corporations of an affiliated group (within the meaning of section 1504(a)) shall be treated as 1 taxpayer.

Codification and Amendment

Deficit Reduction Act of 1984

P.L. 98-369

Tax Reform Act of 1986P.L. 99-514

Consolidated Appropriations Act of 2001

P.L. 106-554

American Job Creations Act of 2004P.L. 108-357

Executive Branch

Federal Executive Documents

58 F.R. 30727

60 FR 14636

Code of Federal Regulations

Judicial Branch: Documents

United States Reports

Federal Reporter 3d

Federal Supplement 2d

Judicial Branch: Documents

Unofficial Reporter

Federal ReportsFederal Reports 2dFederal Reports 3d

55 F. 78 (1st Cir. 1893) 563 F.2d 1377 (9th Cir. 1973)494 F.3d 590 (7th Cir. 2007)Unofficial

ReporterFederal Supplement

Federal Supplement 2d

384 F.Supp. 1403 (S.D.N.Y. 1974)438 F.Supp.2d 125 (E.D.N.Y. 2006)

Official Reporters United States Reports 389 U.S. 347 (1967)

Unofficial Reporters

Supreme Court ReporterU.S. Supreme Court Reports: Lawyers Edition

88 S.Ct. 507(1967)

19 L.Ed.2d 576 (1967)

Case Citation: Volume Reporter Page Year

389 US 347 (1967)

Federal Circuits

Constitution and Enumerated Powers

Federal Government: Article 1 sec. 8

State Government:10th Amendment

Federal System

Federal Government

Legislative BranchExecutive BranchJudicial Branch

Massachusetts Government

Legislative Branch Executive BranchJudicial Branch

State Legislative Documents

1172 Session Laws: Chapter 630, § 2, 1987

Mass. Acts

Code: Mass. Gen. Laws ch. 167H, § 2

State Executive Documents

Massachusetts Code of Regulations

State Judicial Documents

Official Reporter

Massachusetts Reports 451 Mass. 1012 (2008)

Unofficial Reporter

North Eastern ReporterNorth Eastern Reporter 2d

888 N.E.2d 924 (Mass. 2008)

Official Reporter

Massachusetts Appeals Court Reports

72 Mass. App. Ct. 42 (2008)

Unofficial Reporter

North Eastern ReporterNorth Eastern Reporter 2d

888 N.E.2d 956 (Mass. App. Ct. 2008)