Michael Smith
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msmith750.bsky.social
Michael Smith
@msmith750.bsky.social
9K followers 2K following 1.6K posts
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
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Reposted by Michael Smith
maggieblackhawk.bsky.social
New Foreword up on SSRN, previewing new projects on the history of constitutional history and what it can teach about legal frameworks at the heart of our "constitutional crisis"-federal Indian law, territorial law, expansion, immigration, and executive power. papers.ssrn.com/sol3/papers....
As constitutional interpretation becomes rooted ever more deeply into the past the Constitution seemingly has less and less to say about our present. It seems to offer little principled direction for navigating what many describe as a constitutional crisis. On questions ranging from birthright citizenship and territorial acquisition to aggressive federal immigration enforcement, executive intervention beyond U.S. borders, and the “history and tradition” of annexed territories such as Hawai’i, the Constitution’s familiar sources of authority and traditional narratives seem to falter. These domains appear to tread into empty constitutional landscapes and newly discovered territory. Scholars have increasingly traced this backward-looking orientation to conservative legal movements of the last half century. But the impulse to seek constitutional meaning in the past is not new. Long before the Supreme Court embraced originalism, and long before the modern turn to “history and tradition,” jurists and scholars assumed that the Constitution could not be understood apart from its origins and development. Constitutional meaning was thought to emerge from historical inquiry. The question, then, was not whether constitutional interpretation should engage with the past, but which past—and through what historical method. This Foreword argues that our present constitutional impasse stems, at least in part, not solely from excessive attention to the past but from fixation on a particular kind of past. Modern constitutional theory, I suggest, has been increasingly bounded by what scholars in the historical and social sciences call a methodological nationalism. By nationalism, I do not mean to invoke familiar federalism debates. Nor do I use the term nationalism as a pejorative or a critique of those whose research centers the United States and its founders. Rather, in identifying mainstream constitutional theory as operating within a nationalist frame, I seek to draw attention t…
February 13, 2026 at 3:10 PM
Reposted by Michael Smith
professormusgrave.bsky.social
Need to stop men wasting their money on gambling and start them wasting their money on watches
February 12, 2026 at 3:51 PM
msmith750.bsky.social
Visiting the University of Arkansas School of Law for a faculty exchange talk today! Looking forward to discussing constitutional interpretation in a speculative science fiction world. Dickson Street Books is ridiculous, took a huge financial hit there.
View of Fayetteville outskirts from about ten stories up. Lovely. The law schools courtyard, photographed from inside, looking out over the tree, tables, and a few students Dickson Street Bookstore shelves and aisles. Budget at least a few hours if you visit. Arkansas gray squirrel sitting on a branch and looking down at the camera.
February 12, 2026 at 5:30 PM
Reposted by Michael Smith
jbentonheath.bsky.social
This feels like a @msmith750.bsky.social article.
wyofile.com WyoFile @wyofile.com · 1d
A bill introduced Wednesday proposes language that would end an era of recreationally running over foxes, coyotes, wolves and other animals on public land. "We should all be able to support this," an animal rights activist said.
Fourth time’s a charm? Lawmaker tries again to ban Wyoming’s practice of chasing, striking wildlife with snowmobiles - WyoFile
Bill introduced on Wednesday proposes language that would end an era of recreationally running over foxes, coyotes, wolves and other animals on public land.
wyofile.com
February 12, 2026 at 3:18 PM
msmith750.bsky.social
A dire situation, but don't worry:

"[Corrections Dept. Director] Farris is hoping AI can help the Corrections Department better match cellmates. 'When we do that, that is going to be a game changer,' Farris said. "We're going to be first in the country to do it."

www.oklahoman.com/story/news/c...
On the rolling plains of Oklahoma, a deadly prison. 4 years, 21 homicides
"It's like gladiator academy," DA says. At Oklahoma's Allen Gamble Correctional Center, a medium security prison, inmate homicides are rampant, many preventable, investigation reveals.
www.oklahoman.com
February 12, 2026 at 2:44 PM
msmith750.bsky.social
Manifesting
Frog sitting and looking at a fish, being held up in the foreground. The frog is labeled "law reviews" and the fish is labeled "my submissions" Frog is leaping forward to devour the fish
February 11, 2026 at 6:46 PM
msmith750.bsky.social
Geese traffic
Two geese strolling in front of the faulty and staff entrance to the law school
February 11, 2026 at 6:30 PM
Reposted by Michael Smith
lsolum.bsky.social
Denno on the Cruelty of Execution Methods

Deborah W. Denno (Fordham University School of Law) has posted Why Are Executions Becoming Crueler? on SSRN. Here is the abstract: Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details…
Denno on the Cruelty of Execution Methods
Deborah W. Denno (Fordham University School of Law) has posted Why Are Executions Becoming Crueler? on SSRN. Here is the abstract: Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners.
legaltheoryblog.com
February 11, 2026 at 12:30 PM
msmith750.bsky.social
February continues
Clip from Columbo. A driver for an embassy is heading to the embassy gate. Columbo is visible through the windshield, waving at the car to stop as it heads straight toward him. The driver is labeled "law review editors," and Columbo is labeled "my submissions"
February 11, 2026 at 4:40 AM
msmith750.bsky.social
I agree with Alito only to the extent that he's flattering himself, and that Scalia might also have written a similar, nonoriginalist opinion in Dobbs.

www.politico.com/news/magazin...
Rosen: Is Dobbs indebted to Antonin Scalia in any meaningful respect? Alito: Yes, absolutely, because that was my effort to write an originalist’s opinion. … I think I learned from the model of [District of Columbia v.] Heller [the landmark court ruling, authored by Scalia in 2008, that upheld the Second Amendment right to own a handgun]. I don’t know that Nino would have written [Dobbs] any differently. I flatter myself to think that he wouldn’t have written it very differently. And the language, to a degree, may be influenced by him.
February 10, 2026 at 5:43 PM
Reposted by Michael Smith
lucienferguson.bsky.social
I've posted my new paper, "Mapping Malfeasance," on SSRN. I survey all fifty state constitutions to develop a general standard for distinguishing legal from illegal maps. Comments and criticisms are very welcome. papers.ssrn.com/sol3/papers....
February 9, 2026 at 4:33 PM
Reposted by Michael Smith
williambaude.bsky.social
Call for papers!

www.law.uchicago.edu/form/uchicag...
February 9, 2026 at 4:17 PM
Reposted by Michael Smith
chrishampsonlaw.bsky.social
One of two (!) papers I'm submitting this cycle analyzes bankruptcy abstention. Would love any comments! And for law review editors out there, the piece is looking for a good home. [1/8]

papers.ssrn.com/sol3/papers....
February 10, 2026 at 1:36 AM
Reposted by Michael Smith
edithbeerdsen.bsky.social
NOT a recent acceptance but last Feb's paper now on SSRN, w/ many thanks to the excellent editors at Georgia L. Rev. Full paper: papers.ssrn.com/sol3/papers....

(Newer paper still in the cycle & on a very different topic! Sci. ev., skeptics, democracy. On SSRN soon, but lmk if you want to read.)
In civil litigation, strategy is everywhere. Some of it is explicitly envisioned by rules of procedure, but other forms of strategy rely more on clever exploitation of gaps in the rules, sometimes through trickery, surprise, or psychological mind games. The role strategy plays in civil litigation is underexamined, which raises two concerns: first, this lack of attention entrenches strategy by default as a procedural value in competition with accuracy, efficiency, and other procedural values. Second, it amplifies the disadvantages experienced by unrepresented litigants. This Article builds on earlier work to examine how courts shape the space that litigants have for strategic behavior, in service of an inquiry into how that space ought to be shaped. Battles over the meaning and rightful place of strategy in civil litigation tend to play out in the arena of “gamesmanship,” a term courts use with increasing frequency to refer to behavior in the gray zone between the clearly allowed and the clearly disallowed. Strategic behavior in this realm is often unregulated by rules, only weakly governed by norms, and subject to significant judicial discretion. Judicial decisions in cases involving gamesmanship frequently expose tensions between respect for zealous advocacy and concerns about fairness and accuracy. This Article makes two contributions to our understanding of the role of strategic behavior in civil litigation. First, it examines the meaning of “gamesmanship” in a litigation context and proposes a categorization of gamesmanlike litigation behavior. Second, it applies this categorization in describing how courts use the term “gamesmanship” and surveys and theorizes how they treat behavior they have thus labeled. I argue that the concept functions as three distinct analytical tools: (1) as an aspect of purposive statutory analysis; (2) as a canon of construction; and (3) as an implied mental-state element. The Article concludes by imagining a different approach.
February 9, 2026 at 6:58 PM
Reposted by Michael Smith
beaubaumann.bsky.social
This paper has placed with Columbia. Its little sibling article is still up for grabs for the enterprising law journal! They are deeply intertwined and recast the history of American admin law.
February 9, 2026 at 5:09 PM
Reposted by Michael Smith
beaubaumann.bsky.social
1/x Really delighted to say that my coauthored piece with @jedshug.bsky.social, “Quasi-Judicial: A History and Tradition” just landed with the Columbia Law Review. We really appreciate the editors’ hard work! This is a piece that retells the story of American admin law and Humphrey’s Executor.
February 9, 2026 at 2:54 PM
Reposted by Michael Smith
jacobdcharles.bsky.social
Very excited that @gelbach.bsky.social & I will be publishing "Bruen's Tenth Amendment Problem" in the @uchilrev.bsky.social!

Our central arg is that Bruen's erasure of unexercised powers violates the 10th Am's preservation of existing State power. Comments welcome!

papers.ssrn.com/sol3/papers....
February 9, 2026 at 4:14 PM
Reposted by Michael Smith
annacarpenter.bsky.social
Congratulations to @uofoklahomalaw.bsky.social Prof. Michael Smith @msmith750.bsky.social for having his article, “In Praise of Generative AI,” accepted for publication by the Iowa Law Review!

Check out the draft here: papers.ssrn.com/sol3/papers....
February 9, 2026 at 5:43 PM
Reposted by Michael Smith
lauraportuondo.bsky.social
My latest, "Free Exercise and the Redistribution of Liberty," is now posted (and forthcoming in @yalelawjournal.bsky.social). It argues that free exercise doctrine uses selective market logic to redistribute both public resources and liberty itself.

Comments welcome: papers.ssrn.com/abstract=618...
February 9, 2026 at 3:22 PM
msmith750.bsky.social
My latest article, "In Praise of Generative AI," is forthcoming in the Iowa Law Review! In it, I present accounts from the Worst People You Will Ever Meet In Law in which they praise generative AI and all the extra terrible behavior it enables: papers.ssrn.com/sol3/papers....
In Praise of Generative AI 65 Pages Posted: Last revised: 9 Feb 2026 Michael L. Smith University of Oklahoma - College of Law Date Written: February 09, 2026 Abstract In this article, I team up with the Worst People You Will Ever Meet in Law to praise generative AI. After introducing themselves, these actors explain how this technology is a godsend. The terrible lawyer describes how he remains asleep at the wheel and turns over motions, briefing, and client counseling to erratic AI. The worst clients explain how they now prepare all legal documents themselves and refuse to pay attorneys’ unwarranted fees. The lazy judge describes how she replaces party submissions with AI and delegates the task of reasoned judgment to technology. The horrible law professor describes how he’s outsourced teaching, assessment, and scholarship to a machine. The disengaged law student explains how she uses AI to circumvent class discussions and assignments. And the sovereign citizen explains how he’s able to generate harassing nonsense at an unprecedented scale. I close with reflections on what this might mean for the technology’s use in legal spaces, including the need for both advocates and critics of generative AI to consider how the technology will be misused and abused. Finally, I warn that prolonged generative AI usage might transform reasonable individuals into my terrible coauthors. Keywords: artificial intelligence, generative AI, large language models, legal writing, litigation, discovery, professional responsibility, misconduct, pedagogy, sovereign citizens, law and technology
February 9, 2026 at 1:43 PM
msmith750.bsky.social
Nvidia is reportedly about to invest $20 billion in OpenAI to cover the fast-growing costs of making their product incrementally less shitty.

Taste of China in Iowa City sells my favorite dumplings for about $10 for an order of eight. This deal represents 16 billion potential dumplings, squandered.
evanbernick.bsky.social Evan Bernick, a finite mode with a smol hooman and a lorg floof @evanbernick.bsky.social · 5d
I am not scared of this stuff, I’m pissed that resources are being allocated to it that might have been used for things that people will enjoy and learn from
February 8, 2026 at 5:03 PM
msmith750.bsky.social
lol
Wall Street Journal editorial by Tom Foley: "Maybe It's Time to Close the Kennedy Center for Good" Subheading reads "Washington isn't a cultural hub, the building is ugly, and its leaders don't much care about the arts." In the article, Foley acknowledges having once been a leader. He's currently the head of a private equity firm, so none of this is terribly surprising.
February 8, 2026 at 4:47 AM
Reposted by Michael Smith
nilabala.bsky.social
Thrilled to share that 𝐺𝑢𝑖𝑙𝑡 𝑏𝑦 𝑃𝑎𝑟𝑒𝑛𝑡ℎ𝑜𝑜𝑑 has found a home with the Yale Law Journal. This piece examines parental liability regimes and parental rights, and how they are connected by a shared logic that harms children and families. Thank you to all those who read drafts and offered feedback!
February 6, 2026 at 5:01 PM
msmith750.bsky.social
'Intolerable Cruelty' may be one of the lesser Coen Brothers' movies, yet it taught me all I know about trial advocacy.
Heinz the Baron Klaus Von Espy and his dog on the witness stand, exclaiming "I introduce her to that silly man!" The baron being strangled Richard Jenkins standing and shouting "Objection, Your Honor! Strangling the Witness!" Catherine Zeta Jones looks on in horror. The judge ruling, "I'm going to allow it."
February 7, 2026 at 3:52 AM
msmith750.bsky.social
I've re-posted my concise review of the book below:
Simpsons "Stop! Stop! He's already dead!" meme, but "He's" is edited out with "originalism's" pasted over the top.
February 7, 2026 at 1:10 AM