Lawyering Skills I
Professor David E. Sorkin
 

      Each of the Illinois state statutes set forth in this exercise defines a legal concept. For each statute, construct a legal rule that lists the components individually and makes clear their logical relationship. Identify which rules are comprised of elements and which are comprised of criteria.

Elements:  An "element" of a legal rule is a true-or-false condition that must be satisfied in order for the rule to apply. If all of the elements are met, the rule applies; if at least one element is not met, then the rule does not apply. For example: An enforceable contract has three elements: offer, acceptance, and consideration; all three of these are required for a contract to be enforceable. (Other words for "elements" include "requirements" and "conditions.") If an element can be satisfied in more than one way, then it includes "alternatives."

Criteria:  A rule can be described as "criteria-based" if its outcome is determined based upon a number of factors, no one of which is itself determinative. The factors may be subjective, and some may be given more weight than others. Neither the individual factors nor the outcome of the rule need be true-false or all-or-nothing propositions. For example, the sentence imposed upon one convicted of a crime may vary based upon a variety of mitigating and aggravating circumstances. (Other words for "criteria" include "factors" and "considerations.")

Not all writers consistently maintain the distinction between "elements" and "criteria," but it is good practice to use as precise terms as possible in order to promote clarity and avoid confusion.

Example 1:

Example 2:

Heinous battery:

A person who, in committing a battery, knowingly causes severe and permanent disability or disfigurement by means of a caustic substance commits heinous battery.

720 ILCS 5/12-4.1(a).

Vehicular endangerment:

Any person who with the intent to strike a motor vehicle causes by any means an object to fall from an overpass in the direction of a moving motor vehicle traveling upon any highway in this State, if that object strikes a motor vehicle, is guilty of vehicular endangerment.

720 ILCS 5/12-2.5(a).

Robbery:

A person commits robbery when he takes property, except a motor vehicle covered by Section 18-3 or 18-4, from the person or presence of another by the use of force or by threatening the imminent use of force.

720 ILCS 5/18-1(a).

Armed robbery:

A person commits armed robbery when he or she violates Section 18-1 while he or she carries on or about his or her person, or is otherwise armed with, a dangerous weapon.

720 ILCS 5/18-2(a).

Burglary:

A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft.

720 ILCS 5/19-1(a).

Residential burglary:

A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.

720 ILCS 5/19-3(a).

Looting:

A person commits looting when he knowingly without authority of law or the owner enters any home or dwelling, or upon any premises of another, or enters any commercial, mercantile, business or industrial building, plant or establishment, in which normal security of property is not present by virtue of a hurricane, fire or vis major of any kind or by virtue of a riot, mob, or other human agency and obtains or exerts control over property of the owner.

720 ILCS 5/42-1.

Tattooing body of minor:

Any person, other than a person licensed to practice medicine in all its branches, who tattoos or offers to tattoo a person under the age of 21 is guilty of a Class C misdemeanor. As used in this section, to "tattoo" means to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin.

720 ILCS 5/12-10.

Dog owner liability:

If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.

510 ILCS 5/16.

Baseball facility liability:

The owner or operator of a baseball facility shall not be liable for any injury to the person or property of any person as a result of that person being hit by a ball or bat unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than in width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator.

745 ILCS 38/10.

Historical sites:

The development rights of a landmark site are the rights granted under applicable local law respecting the permissible bulk and size of improvements erected thereon. Development rights may be calculated in accordance with such factors as lot area, floor area, floor area ratios, height limitations, or any other criteria set forth under local law for this purpose.

65 ILCS 11-48.2-1A(1).

Statute of frauds:

No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.

740 ILCS 80/2.

Negotiable instrument:

Except as provided in subsections (c) and (d), "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
      (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
      (2) is payable on demand or at a definite time; and
      (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of any obligor.

810 ILCS 5/3-104(a).

Simulated checks:

It is an unlawful practice for any person to promote or advertise any business, product or interest in property by means of distributing documents designed to simulate checks or other negotiable instruments unless such instrument has printed upon both its front and back, the following statement: "This is not a Check". However, it is not an unlawful practice under this Section for a person to distribute for commercial purposes a sample or specimen of a check or other instrument which is used to solicit orders for the sale of that instrument and which is clearly marked as a non-negotiable sample or specimen.

815 ILCS 505/2X.

Chain referral sales:

The use or employment of any chain referral sales technique, plan, arrangement or agreement whereby the buyer is induced to purchase merchandise upon the seller's promise or representation that if buyer will furnish seller names of other prospective buyers or like or identical merchandise that seller will contact the named prospective buyers and buyer will receive a reduction in the purchase price by means of a cash rebate, commission, credit toward balance due or any other consideration, which rebate, commission, credit or other consideration is contingent upon seller's ability to sell like or identical merchandise to the named prospective buyers, is declared to be an unlawful practice within the meaning of this Act.

815 ILCS 505/2A(1).

Wrongful death:

Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

740 ILCS 100/1.

Child custody:

The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
      (1) the wishes of the child's parent or parents as to his custody;
      (2) the wishes of the child as to his custodian;
      (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
      (4) the child's adjustment to his home, school and community;
      (5) the mental and physical health of all individuals involved;
      (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
      (7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
      (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
      In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

750 ILCS 5/602(a).