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1 January 2026
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- Article1 January 2025
Flagrant Fouls: The First Amendment, Legal Speech, and Attacks on Law Firms and the Rule of Law
This Essay explores the Trump Administration’s unprecedented campaign targeting major U.S. law firms for retribution and examines such actions in light of the First Amendment’s relationship to these actions. Drawing on historical and doctrinal analyses, the Essay introduces and defends the concept of “legal speech” as a critical cluster of First Amendment protections encompassing the rights of lawyers to speak, associate, petition, and advocate on behalf of clients in an unfettered way and without government retaliation. Executive actions against Covington & Burling, Paul Weiss, Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey purport to revoke security clearances, bar access to federal buildings, review hiring practices, and even penalize third-party clients doing business with the federal government—all in apparent response to these firms’ litigation stances, pro bono activities, and affiliations with political adversaries of the president. The Essay situates these actions within a larger historical, constitutional, and legal framework by tracing the doctrinal roots of legal speech through landmark Supreme Court decisions, including NAACP v. Alabama, NAACP v. Button, In re Primus, and Legal Services Corp. v. Velazquez, which collectively establish that legal advocacy—especially litigation aimed at advancing civil rights and challenging government action—is constitutionally protected expression. The Essay further analyzes how the Administration’s actions mirror past attempts by government to suppress disfavored speech through indirect pressure on third parties, a tactic the Supreme Court unanimously condemned in NRA v. Vullo as recently as May of 2024. The Essay also chronicles how some firms capitulated to administrative pressure without a formal Order issued against them, engaging in what historian Timothy Snyder describes as “anticipatory compliance,” further raising alarm about the erosion of rule-of-law principles. Ultimately, this Essay argues that these Executive Orders constitute clear content-based restrictions on legal speech and are therefore unconstitutional.
Current Articles
Most Popular Articles
- Article5 March 2018
U.S. Tax Treatment of Australian Superannuation
The Organization for Economic Cooperation and Development (OECD) estimates than more than 100,000 Australian citizens are living and working in the U.S. Those Australian nationals almost certainly have some sort of Superannuation Fund, which is a state-mandated occupational pension scheme in Australia. The problem is that nearly every accounting firm in the U.S. is treating Australian Superannuation as a taxable foreign grantor trust. This presents a serious issue since the funds within Superannuation Funds are completely inaccessible until retirement, disability, or death. For an Australian national living in the U.S., this would result in immediate U.S. taxation on all gains within the fund. Because of the lack of liquidity, an Australian national will be taxed on gains they did not truly experience. The problem is that there are differing views as to what Australian superannuation actually is. Is it a private pension? Is it a foreign grantor trust? Or is it a novel form of privatized social security? The correct answer could mean the difference between a client being burdened with U.S. tax on unrealized gains and a client being able to lawfully exclude gain and even future distributions from the superannuation fund from their U.S. tax return. - White Paper1 April 2017
Statewide Rules of Criminal Procedure: A 50 State Review
Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal procedure rules, this report also offers some considerations as to the potential applicability, depth, and specifics of statewide criminal procedure rules. - White Paper20 April 2018
The Elephant in Nevada's Hotel Rooms: Social Consumption of Recreational Marijuana, A Survey of Law, Issues, and Solutions
Well known for its longstanding tradition of sanctioning and regulating the indulgence of activities almost universally considered “vices” (such as gambling, and even prostitution), Nevada now stands in a unique position on the frontlines of the state-level social experiment in marijuana decriminalization. Las Vegas—a mecca for tourists from around the world—has over forty-million annual visitorswho can now legally (at least under Nevada law) purchase up to one ounce of marijuana for recreational use. However, any consumption of that marijuana in a “public place,” retail marijuana store, or in a moving vehicle is a misdemeanor punishable by a fine of up to $600. For Nevadans, this restriction on public consumption simply means that they must consume their recreational marijuana in the privacy of their residences. For Nevada’s tourists, however, this restriction presents a catch-22: Nevada’s tourists may lawfully purchase marijuana, but they have nowhere to lawfully consume it. “What happens in Vegas” will (inevitably) happen in Las Vegas, and Nevada law must adapt to provide for sensible and safe accommodations for tourists who want to lawfully consume a product that they may lawfully purchase. In the absence of such change, many tourists will inevitably consume marijuana unlawfully and unsafely. Ignoring this “elephant in the room” will not make it go away. The situation must be addressed directly. - Article1 October 2018
Is the Cure Worse Than the Disease?: Censorship of Hate Speech May Well Increase Violence
From Charlottesville to college campuses, people with odious hate groups have risen in notoriety recently. Responses to those people and the groups to which they belong have ranged from efforts to keep them from speaking in person, to deleting their presence on the internet, to efforts to have them terminated from their jobs or evicted from their apartments, and even to physical assault by members of such groups as Antifa. Such efforts at censoring, ostracizing, and stigmatizing hate group members are generally justified by claims that such individuals are dangerous. It is true that some scholars have found an association between the existence of far-right hate groups and the occurrence of far-right ideological violence;however, it is also true others have failed to find an association between hate groups and hate crimes, and that the majority of hate crimes are committed not by ideologically-motivated individuals, but rather by groups of bored youthswho are often under the influence of alcohol. Most importantly, there is substantial evidence that censorship and demonization of hate group members is counterproductive because they tend to lead to more violence, not less. - Article1 April 2017
A Left of Liberal Interpretation of Trump's "Big" Win, Part One: Neoliberalism
Trump’s narrow victories in swing states could have been caused by any number of factors, but it is still significant that there was a nation-wide shift of the non-college white electorate, male and female. Many non-college Democrats who had voted for Obama did not turn out for Hillary and some voted for Trump; many Republicans who had not voted for Romney turned out for Trump. This article proposes, as part of the explanation, a rebellion of non-college whites against the consequences for poor communities, in red states or in red pockets in blue states, of four decades of neoliberal selective deregulatory policies. It argues that this part of the vote for Trump was a vote against policies shared by Republicans and Democrats, policies that have “devastated” not the country as a whole but this particular part of the country, along with, paradoxically, poor inner city blacks. - White Paper6 May 2019
To Bail or Not to Bail: Protecting the Presumption of Innocence in Nevada
This white paper aims to discuss the issues associated with bail reform in Nevada, provide an analysis of bail reform efforts across the country, and purpose possible solutions for obstacles to bail reform in Nevada. The white paper’s proposed recommendations for practical bail reform is a three-phase plan to eliminate the injustices that arise from Nevada’s current cash bail model.