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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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 · 2d
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
Reposted by Michael Smith
beaubaumann.bsky.social
Bruh, they got @jgienapp.bsky.social going for like $12 on amazon. Easiest purchase of your life.
February 6, 2026 at 5:54 PM
Reposted by Michael Smith
matthewboedy.bsky.social
Great review of a collection of essays by “exiled” faculty including me. I wrote about how I was fired before I even started. #highered

www.aaup.org/issue/winter...
Humanities Faculty in the Hinterlands
Exile at Small-Time U: Essays from the Trenches of Embattled Academia, edited by Douglas Higbee. McFarland, 2025.
www.aaup.org
February 6, 2026 at 11:41 AM
msmith750.bsky.social
Wise Words

papers.ssrn.com/sol3/papers....
Tweet from Poland's Prime Minister, Donald Tusk, stating "In the time of strategic uncertainty, it's worth knowing who we're dealing with." An accompanying photo shows Tusk reading a book with a solemn expression on his face. The cover of the book has been edited to read, "Is Originalism Bullshit? Michael L. Smith, Lewis & Clark L Rev."
February 6, 2026 at 7:36 PM
Reposted by Michael Smith
raffaelfasel.bsky.social
Thrilled to have received the first copies of my new book (co-authored with the wonderful John Adenitire). Very grateful to the team at #OxfordUniversityPress and the editors of the Oxford Constitutional Theory series for their support.
April 27, 2025 at 6:17 PM
Reposted by Michael Smith
ggkrishnamoomoo.bsky.social
so, I think the order does do real law, even if the form is unusual

here's my attempt to show how the arguments fit in our constitutional discourse (I use Bobbitt's modalities)

papers.ssrn.com/sol3/papers....

thanks to @anthonymkreis.bsky.social and @andrewkjennings.com for comments!
February 6, 2026 at 2:36 PM
Reposted by Michael Smith
itayravid.bsky.social
Another new article of mine is officially out: “(Re)Individualizing Criminal Law,” (67 B.C L. Rev. 255 (2026): lnkd.in/eR9eF7Fv Abstract 👇 & v. short 🧵
1/6
February 3, 2026 at 8:52 PM
msmith750.bsky.social
For context on how this fits into the landscape of related restrictions, plus analysis of their constitutionality and not-very-usefulness: Library Crime! papers.ssrn.com/sol3/papers....
February 6, 2026 at 2:31 PM
Reposted by Michael Smith
lsolum.bsky.social
Schascheck on Heller’s Second Amendment Exception and Bruen

Kevin Schascheck II (Independent; Tulane University School of Law) has posted Second Amendment Exceptions on SSRN. Here is the abstract: The Second Amendment guarantees the individual right to keep and bear firearms. But that right has…
Schascheck on Heller’s Second Amendment Exception and Bruen
Kevin Schascheck II (Independent; Tulane University School of Law) has posted Second Amendment Exceptions on SSRN. Here is the abstract: The Second Amendment guarantees the individual right to keep and bear firearms. But that right has never been absolute. In Heller, the Supreme Court was careful to recognize certain exceptions to the right, which it labelled "presumptively lawful" categories of firearm regulations.
legaltheoryblog.com
February 5, 2026 at 12:30 PM
msmith750.bsky.social
Rare footage of law review editors making a decision regarding my article
February 6, 2026 at 2:28 AM