Michael Smith

@msmith750

Associate professor of law at University of Oklahoma College of Law. Researching constitutional law, criminal law, and legal oddities.

2043 Siguiendo9368 Seguidores2161 Publicaciones

Bluesky

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Michael Smith@msmith750· 21d

Late Night Skunk

Skunk eating some catfood on a short brick wall as it ducks under some plants.

Michael Smith@msmith750· 22d

In today's work, I'm once again citing one of the greatest articles of all time: papers.ssrn.com/sol3/papers....

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

Michael Smith@msmith750· 22d

The neighborhood cats had a busy day.

The front stoop pictured through the windows. Two black and white cats are sprawled out, napping.

Hugh the cat, napping on the front step.

Michael Smith@msmith750· 23d

Imagining a world without birthright citizenship analysis from someone who knows nothing about the 14th Amendment

Lionel Hutz imaging a world without lawyers

Michael Smith@msmith750· 23d

Just finished the draft of my latest article on state constitutional law! This is my contribution to an upcoming Montana Law Review symposium. I explore how Montana is a model for interpreting state constitutional punishment provisions in context. papers.ssrn.com/sol3/papers....

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.

Michael Smith@msmith750· 23d

Glamorous Neighbor

Michael Smith@msmith750· 23d

Dropping another article tomorrow; here's the teaser.

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.

Michael Smith@msmith750· 27d

Gearing up

A hamster being offered a crispy snack. The snack is labeled "my articles" and the hamster is labeled "Law Reviews"

Michael Smith@msmith750· 28d

Columbo the cat in nap pose, sprawled out on the ground, with eyes wide open looking at the camera.

Michael Smith@msmith750· 28d

Lots going on back in Oklahoma.

Michael Smith@msmith750· Jul 13

Missing amazing things while I'm 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.

Michael Smith@msmith750· Jul 13

Happy CrimFest Eve

Lovely view of the park and Columbus Circle

Michael Smith@msmith750· Jul 11

Date Night

Two skunks outside the front door, one on the stoop, and one on a nearby stone, nibbling at catfood.

Michael Smith@msmith750· Jul 10

Got a new Guy today

Pig made out of a tin can and scraps of metal sitting in a planter

Alternate angle of the pig. Its tail is a metal spring

Michael Smith@msmith750· Jul 10

Soon

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."

Michael Smith@msmith750· Jul 10

Wild times at the 1972 Montana Constitutional Convention.

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

Michael Smith@msmith750· Jul 10

Always a hassle to bring the kid along for dinner.

Michael Smith@msmith750· Jul 10

Here we go

Michael Smith@msmith750· Jul 9

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

Michael Smith@msmith750· Jul 7

Lounging Hugh

Hugh the cat, laying on the front stoop near some catfood, looking back toward the camera.

Michael Smith@msmith750· Jul 7

Serious Man screenshot. Clive's father saying "Please. Accept the mystery."

Michael Smith@msmith750· Jul 6

Happy to see that Columbo the cat survived last night's crazy thunderstorm.

Columbo the black and white cat sitting on the front step, looking slightly less disheveled than usual.

Michael Smith@msmith750· Jul 4

The dumb Stephen Miller tweet put into the "You wouldn't steal a car" meme

Michael Smith@msmith750· Jul 4

Fallout screenshot: "Everyone disliked that."

Michael Smith@msmith750· Jul 4

BUT I take issue with limiting the squirrel obsession to the NFL:

Blake Griffin tweet: "Accidentally hit a squirrel yesterday in my car. Feel so guilty I could barely sleep. Casey Anthony is a monster."

Michael Smith@msmith750· Jul 4

Thanks. Check out this Boise Squirrel housing this hamburger bun.

A squirrel up on a fence holding a hamburger bun in both paws and nibbling at it

Michael Smith@msmith750· Jul 3

Columbo awakens

A disheveled cat, collapsed on its side, looking at the camera with one wide open eye.

Michael Smith@msmith750· Jul 1

For those seeking a break from endless Supreme Court Discourse heading into the Fourth of July weekend, check out this article I coauthored with my wife, Yoo Jung (@cellochang.bsky.social) on Igor Stravinsky's arrangement of the national anthem & related legal drama! papers.ssrn.com/abstract=703...

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

Michael Smith@msmith750· Jun 30

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."

Michael Smith@msmith750· Jun 30