Aaron J. Rappaport

On the Conceptual Confusions of Jurisprudence

For more than half a century, legal theorists have tried to identify and describe the concept of law, employing a method called “conceptual analysis” to pursue this goal. Yet the details of that methodology remain obscure, its merits largely accepted without careful analysis. A reassessment is long past due. This paper offers the first comprehensive survey of the way conceptual analysis has been used in legal theory. The paper identifies four different forms of conceptual analysis – the empirical, intuitive, categorical and contingent methods of analysis. After clarifying the core assumptions of each approach, the paper evaluates whether any of the four methods represent an appealing way of doing legal philosophy. The assessment, though preliminary, yields a sharply negative conclusion. Properly understood, the methods of conceptual analysis offer little appeal. Dramatic claims made by leading practitioners turn out to be, on closer inspection, either banal or wildly implausible. This conclusion, if accurate, raises deep concerns about the state of legal theory today. It means that theorists face a critical challenge – to identify a new methodology that can replace conceptual analysis as the dominant approach to jurisprudence. The paper concludes with a few thoughts on what that methodology might be, and how it might generate a more fruitful, more interesting, form of legal philosophy.

Editors' Observations: The Intertwined Problems of Immigration and Sentencing

crimes, whether they be in this country legally or illegally. In recent years, Congress and the states have responded to public concern about immigrant crime with a series of legislative programs and enforcement projects. The Anti-Terrorism and Effective Death Penalty Act (AEDPA), which became law on April 24, 1996, and the immigration bills currently pending before Congress, are only the latest examples of these undertakings. Given the complexity of the issues, and the passions stirred by them, one may reasonably question the Congresss ability to address them in a coherent and rational manner in an election year. This special Issue of FSR seeks to shine some light on this rapidly changing field of law?a field that has too long been neglected by most mainstream federal practitioners. The observations of the Issues participants?prosecutors, academics, and defense attorneys?suggest that this shadowy area of the law deserves, at minimum, detailed attention and considerable reform.