Michael Smith

@msmith750.bsky.social

9375 Followers 2045 Following

Associate professor of law at University of Oklahoma College of Law. Researching constitutional law, criminal law, and legal oddities. https://law.ou.edu/node/716

By Berber Jin , Peter Rudegeair , Gregory Zuckerman and Anissa Gardizy July 31, 2026 12:41 pm ET When the week began, Leopold Aschenbrenner was preparing for his wedding. The plan was for a multiday celebration in Carmel, a seaside town in Northern California, with the ceremony at a Tuscan-style villa and the send-off at a spa in the forest. There would also be a pre-wedding colloquium to discuss ideas in panels and breakout sessions. The couple’s only request: no gifts.
Two small skunks fighting to get on top of a short brick wall with catfood. They are variously successful, with the loser occasionally falling into a small water dish.
Pointy dog looking forward as its nose turns of its own accord toward an orange slice held nearby. The dog is labeled "Law Reviews" and the orange is labeled "my articles"
Beach bird running from a wave
WSJ Headline: Business Corporate America Has Suddenly Decided to Stop Blowing Money on AI Companies big and small are mixing models and it’s changing the economics and power players of the industry
Pseudolaw and Sovereign Citizens, edited by Harry Hobbs, Stephen Young, and Joe McIntyre
Black cat, kind of small, crouching outside the front door and looking toward the camera with concern.
Surprised Pikachu
Columbo the cat sprawled on his side on the front steps
How to Reject a Law Review Article 29 Pages Posted: Michael L. Smith University of Oklahoma - College of Law Date Written: July 22, 2026 Abstract Every submission season, law reviews reject thousands of submissions. In doing so, they rely on rejection notification templates containing misleading tropes and outright dishonesty. Drawing on an extensive personal archive, I identify irritating euphemisms, unhelpful attempts at justification, and misleading claims of article enjoyment. Articles editors should revisit and revise their rejection templates to avoid these tendencies. To the end of improving law review rejections, I provide examples of strong form rejections and suggestions for law reviews that hope to go the extra mile and try personalized feedback. Throughout, I emphasize that rejections—whether clumsy or well-crafted—are preferable to journals’ silence. Keywords: legal scholarship, rejection, Scholastica, legal writing, submission, Kafka, honesty, candor, boilerplate
Skunk eating some catfood on a short brick wall as it ducks under some plants.
The Under-Theorized Asterisk Footnote 26 Pages Posted: 27 Jun 2005 Charles A. Sullivan Seton Hall Law School Abstract The asterisk footnote, although universally deployed in legal scholarship, has been equally universally ignored by the academy as a focus of scholarly interest. As I use the term, asterisk footnote refers to the note (usually, but not always, the first one) that, inter alia, identifies the author and (usually, but not always) is indicated by an asterisk. This footnote is used by every scholar but analyzed by none. This scholarly inattention is shocking given the remarkable growth and development of the asterisk footnote over the last 40 years. This Article is the first effort to address this gaping lacuna in scholarship. It is my hope (perhaps not my expectation) that it will launch a wave of asteriskian studies that will throw new light on the legal academy. In addition to tracing the history of the asterisk footnote from its origins in the primeval scholarly ooze to its present exalted status, the Article explores its significance for the legal academy on topics ranging from wholesale acknowledgements to dedications to pets. It also considers what light the asterisk footnote can throw on questions as diverse as the proper etiquette for tributes and the democratization of scholarship. Keywords: Asterisk, star, footnote, legal scholarship, tribute, acknowledgements
The front stoop pictured through the windows. Two black and white cats are sprawled out, napping.
Lionel Hutz imaging a world without lawyers
A Holistic Approach to Montana's Constitutional Punishment Provision 88 Montana Law Review (Forthcoming 2026) 50 Pages Posted: Michael L. Smith University of Oklahoma - College of Law Date Written: July 20, 2026 Abstract Montana’s constitutional prohibition on cruel and unusual punishment is almost identical to the Eighth Amendment of the United States Constitution. Yet the Montana Constitution, considered as a whole, contains numerous provisions bearing on the treatment of those convicted of crimes. The Montana Supreme Court routinely reads state constitutional rights provisions together and derives enhanced protections from their combined strength. Those raising constitutional challenges to punishment practices should draw on Montana’s numerous unique provisions that are relevant to punishment practices and urge courts to read Montana’s punishment provision in this broader context. Provisions without federal analogs, including Montana’s rights to dignity, privacy, and inalienable rights, as well as Montana’s prohibitions on punishments for certain conduct and certain forms of punishments all may strengthen Montana’s prohibition of cruel and unusual punishment. This Article provides a foundation for these arguments by collecting these provisions, describing their development and interpretation, and demonstrating how they may be read to strengthen Montana’s constitutional punishment provision.
A skunk on a brick wall looking on.
A Holistic Approach to Montana’s Constitutional Punishment Provision Michael L. Smith 88 MONT. L. REV. (Forthcoming 2026) Abstract Montana’s constitutional prohibition on cruel and unusual punishment is almost identical to the Eighth Amendment of the United States Constitution. Yet the Montana Constitution, considered as a whole, contains numerous provisions bearing on the treatment of those convicted of crimes. The Montana Supreme Court routinely reads state constitutional rights provisions together and derives enhanced protections from their combined strength. Those raising constitutional challenges to punishment practices should draw on Montana’s numerous unique provisions that are relevant to punishment practices and urge courts to read Montana’s punishment provision in this broader context. Provisions without federal analogs, including Montana’s rights to dignity, privacy, and inalienable rights, as well as Montana’s prohibitions on punishments for certain conduct and certain forms of punishments all may strengthen Montana’s prohibition of cruel and unusual punishment. This Article provides a foundation for these arguments by collecting these provisions, describing their development and interpretation, and demonstrating how they may be read to strengthen Montana’s constitutional punishment provision.
A hamster being offered a crispy snack. The snack is labeled "my articles" and the hamster is labeled "Law Reviews"
Columbo the cat in nap pose, sprawled out on the ground, with eyes wide open looking at the camera.
Three adult skunks out in front of the house. Two are hard at work eating catfood left out for the cats that have just been crowded out. Another wanders around the planter looking for grabs. Four baby skunks are grouped together down on the stairs, looking on nervously before the skunk in the planter comes back, flops down off the ledge, and then leads them away.
A mama skunk on the front stoop trying to eat, but getting swarmed by three baby skunks. A cat is eating on some steps in the background.
Lovely view of the park and Columbus Circle
Two skunks outside the front door, one on the stoop, and one on a nearby stone, nibbling at catfood.
Pig made out of a tin can and scraps of metal sitting in a planter
A container filled with guinea pigs next to a container with straw at the bottom. The guinea pigs are milling about, though one is looking over the edge of its container toward the straw. The guinea pigs are labeled "my articles" and the straw is labeled "law reviews."
Convention transcript: would vote against double jeopardy. I have voted for several issues in the Bill of Rights on the ques tion of right or wrong and they have been my personal decisions, and I’ll vote that way on this one, too. I do not think capital punishment is in accord with my principles, and so I shall vote against it. (A dog entered the Hall and started barking Laughter) CHAIRMAN GRAYBILL: Mr. Foster. DELEGATE FOSTER: Mr. Chairman, fellow delegates. I don’t expect to contend with that type of competition, but I would like to respond in some part to Delegate Artz’s comment and also, I think, to a degree to Delegate Harper’s comments. Since the time that I was in junior high
Mama skunk is eating as the baby sits nervously alongside. Eventually, the baby wanders under the mom, and the mom then lays on top of the baby as she continues to eat.
Two skunks, a mama and a baby, running up the steps in front of the house to get at some catfood sitting out.
Michael Clayton Mentioned image, with characters from the movie (including the horse and killers) all edited so they're smiling, mostly via horrifying smiles digitally pasted onto their faces
Hugh the cat, laying on the front stoop near some catfood, looking back toward the camera.
Serious Man screenshot. Clive's father saying "Please. Accept the mystery."
Columbo the black and white cat sitting on the front step, looking slightly less disheveled than usual.
The dumb Stephen Miller tweet put into the "You wouldn't steal a car" meme
Fallout screenshot: "Everyone disliked that."
Blake Griffin tweet: "Accidentally hit a squirrel yesterday in my car. Feel so guilty I could barely sleep. Casey Anthony is a monster."
A squirrel up on a fence holding a hamburger bun in both paws and nibbling at it
A disheveled cat, collapsed on its side, looking at the camera with one wide open eye.
Stravinsky's National Anthem 52 Pages Posted: Michael L. Smith University of Oklahoma - College of Law Yoo Jung Chang affiliation not provided to SSRN Date Written: July 01, 2026 Abstract In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem. This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books. Keywords: Stravinsky, National Anthem, Star-Spangled Banner, music, First Amendment, zombie law, moral panic, history
Astronaut meme. First astronaut is saying "Wait, it's all pluralism?" The second astronaut is pointing a gun at the first and saying "Always has been."
Tweet by "Iacobus Novus": "How's everyone feeling about the 'history and tradition' test today?" retweeted by Adrian Vermeule.
Video of Mike Johnson responding to questions at a podium. Text below says: “Well, uh, I need to read the opinion, OK? But uh, obviously that’s, I mean you could say that’s a textualist and originalist view,” Johnson stammered. “But, however, I do think that this has been grossly abused in recent years and that is the case that’s being made by the plaintiffs of the case and we’re very sympathetic to that because it’s a serious problem.”
Opinion: David French Headline: Neil Gorsuch Has a Few Thoughts About America Today. The text is white against a black background, except for "opinion," which is blood red. Cursed in every way possible.
Cat collapsed on its side in the shade of some bushes. Legs are askew. RIP
A skunk crouched on some bricks near the front stoop, eating some catfood. A black and white cat is sitting behind the skunk off in the bushes, glaring at the camera.
Etching of a sow and piglets being put on trial in a courtroom
Black and white cat sleeping on its side out on a stone near the house next to a planter.
Thermostat on the wall, reading 66.6 degrees
A hawk standing on a fence, looking on
Flower meme. Screaming, accusatory flower is accompanied by the text, "The Court when it's a facially neutral, but racist as hell law cited to support a modern gun control law." Shy, smiling flower is accompanied by the text, "The Court when it's a facially neutral, but racist as hell law being challenged today"
Skunk nibbling at cat fold outside on a stepping stone near a planter.
Cats noticing the skunk approaching the cat food area on the front steps.
Black and white cat resting on the hood of my car, photographed from above.
Interpreting State Constitutional Punishment Provisions Holistically Michael L. Smith Abstract Mass incarceration and overcriminalization arise at all levels of the criminal legal system and disproportionately impact communities of color, those who are economically disadvantaged, and others who face social and political prejudice. The Supreme Court’s Eighth Amendment doctrine is of little help. Despite some limited successes in discrete domains, the Eighth Amendment leaves states with a great deal of leeway to punish—permitting vast sentences for nonviolent offenses and saying little about sentences other than death and life-without-parole. Despite the Eighth Amendment’s failings, some promise for reform may yet remain in state constitutional law. This article adds to a relatively new, but growing, body of scholarship on state constitutional analogues to the Eighth Amendment and their potential for leveling broader challenges to systems of mass incarceration and criminalization. Specifically, I argue that courts and advocates should take a holistic approach to punishment provisions and interpret state constitutional punishment provisions in the context of other, relevant provisions. As it turns out, there are hundreds of relevant provisions available to enrich the analysis. State constitutional provisions regarding the purposes of criminal punishment, rights to education, inalienable rights, and many, many more may support arguments for interpreting state bans on cruel and unusual punishment in a more protective and sweeping manner than limited Eighth Amendment protections. At the same time, other state constitutional provisions such as those guaranteeing the death penalty for certain offenses, requiring or permitting certain forms of labor by convicts, and victims’ rights provisions might cut against protective readings. While some states have begun to engage in holistic interpretation of their punishment provisions, many have yet to consider the breadth an…
A toad laying flat on the curb at night
This justification, too, appears to conflict with our prece dents. Congress cannot regulate the possession of every thing that ever traveled across state lines. Alderman, 562 U. S., at 1167 (opinion of THOMAS, J.). As a statutory mat ter, Congress required no more. But, treating Congress’s “jurisdictional element” as dispositive “could very well re move any limit on the commerce power” and “would tres pass on traditional state police powers.” Ibid.
Hundreds of desks and dressers strewn about in a parking lot outside a dorm building
Black and white cat on the front step, looking at the camera with an expression that is both mournful and concerned.
Nighttime. Skunk eating the remnants of the day's catfood on the front step.
Pat Sobkowski making sensible points and Kurt Lash accusing him of subtracting Thomas Jefferson and otherwise framing Pat's points dismissively. I chime in with the perfectly reasonable response that Kurt's reply isn't constructive and that by using the term, "subtweet," he is implying that Pat should have tagged Thomas Jefferson.
Book-length Kurt Lash tweet: "Even as the Court prepares its ruling in Trump v. Barbara, scholars continue to explore the historical record and present serious arguments regarding birthright citizenship. R. Epstein's book and the new Whittington/Keener essay both investigate the antebellum background of citizenship, and both claim that 1866 cong. debates must be understood in a manner consistent with this background--but the book and the essay reach opposite conclusions about what exactly that background establishes. Given the on-going and real time emergence of new history and new arguments, it does not seem like the best time for the Court to entrench a constitutional rule and deny the people the right to debate and enact policy on the issue."