Michael Smith

Assistant Professor of Law

Biography

Michael Smith, J.D., researches and teaches in the areas of criminal law and criminal procedure. His research also includes issues relating to constitutional law, including constitutional interpretation, originalism and state constitutional law. His scholarship has appeared in the Brooklyn Law Review, Pepperdine Law Review, Pennsylvania State Law Review and the Harvard Journal on Legislation.

Before joining the faculty of St. Mary’s University School of Law, Smith was a temporary faculty member at the University of Idaho College of Law, where he taught courses in constitutional law, criminal procedure and First Amendment law. Prior to entering academia, Smith practiced for over eight years–primarily as a civil litigation attorney. Smith handled numerous high-profile cases on a wide variety of subject matters, including environmental law, entertainment law, civil rights litigation, professional liability, and commercial litigation. Smith also worked as a fellow with the Orange County District Attorney’s Office in Orange County, California, where he tried multiple cases before juries and was involved in the preliminary stages of misdemeanor and felony cases.

Smith received his J.D. from the UCLA School of Law, and a B.S. in political science and a B.A. in philosophy from the University of Iowa. He is admitted to practice law in California. In his spare time, Smith enjoys hiking, exploring used book shops, and attending classical music concerts.

Publications

Articles in Periodical

• Papering Justices, 50 B.Y.U. L. Rev. (Forthcoming 2025)
• Is Originalism Bullshit?, 28 Lewis & Clark L. Rev. (Forthcoming 2025)
• History as Precedent: Common Law Reasoning in Historical Investigation,27 U. Pa. J. Con. L. (Forthcoming 2025)
• Social Media Regulation in the Wake of 303 Creative v. Elenis, 17 St. Thomas J.L. & Pub. Pol’y (Forthcoming 2024)
• Generative AI in the Attorney-Client Relationship: An Exercise in Critical Revision and Client Management, 27 S.M.U. Sci. & Tech. Rev. (Forthcoming 2024)
• State Constitutional Prohibitions of Slavery and Involuntary Servitude, 99 Wash. L. Rev. __ (Forthcoming 2024)
• Moral Panic and the First Amendment, 72 Buffalo L. Rev. __ (Forthcoming 2024)
• Library Crime, 71 Drake L. Rev. __ (Forthcoming 2024)
• Constitutional Crimes, 99 N.D. L. Rev. __ (Forthcoming 2024)
• Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative, 84La. L. Rev. 565 (2024)
• Language Models, Plagiarism, and Legal Writing, 22 U.N.H. L. Rev. __ (Forthcoming 2024)
• Constitutional Interpretation and Zombie Provisions, 40 Ga. St. U. L. Rev. __ (Forthcoming 2024
• Disingenuous Interpretation, 93 Miss. L. J. 349 (2023)
• Originalism and the Meaning of “Twenty Dollars”, 56 Creighton L. Rev.  499 (2023)
• Idaho’s Law of Seduction,59 Idaho L. Rev.  291 (2023)

• Originalism, Common Good Constitutionalism, and Transparency, 45 Harv. J.L. & Pub. Pol’y 1217 (2023)
• Idaho’s Law of Constitutional Interpretation: Lessons From Planned Parenthood Great Northwest v. State, 59 Idaho L. Rev. __ 59 Idaho L. Rev. 411 (2023)
• Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law, 88 BROOKLYN L. REV. 797 (2023)
• Abandoning Original Meaning, 86 ALBANY L. REV. 43 (2023)
• The Present Public Meaning Approach to Constitutional Interpretation, 89 TENNESSEE L. REV. 885 (2023)
• Countermajoritarian Criminal Law 43 PACE L. REV. 54 (2023)
• Using Bruen to Overturn New York Times v. Sullivan, 2022 PEPPERDINE L. REV. 80 (2023) (coauthored with Alexander Hiland)
• Policy’s Place in Pedestrian Infrastructure, 127 DICKINSON L. REV. 587 (2023) (Reviewing Angie Schmitt, Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America (Island Press 2020))
• Originalism’s Implementation Problem, 30 WILLIAM & MARY BILL OF RIGHTS J. 1063 (2022) (coauthored with Alexander Hiland)
• The Third Amendment in 2020, 52 STETSON L. REV. 55 (2022)
• Distracted Walking, 126 PENN STATE L. REV. 707 (2022)
• Originalism and the Inseparability of Decision Procedures From Interpretive Standards, 58 CAL. WEST. L. REV. 273 (2022)
• The Citation of Unpublished Cases in the Wake of COVID-19, 25 CHAPMAN L. REV. 97 (2022)
• Trial by Combat in the Modern World, 27 BARRY L. REV. 53 (2022)
• Shooting Fish, 12 KY. J. EQUINE, AGRIC. & NAT. RESOURCES L. 187 (2020)
• Prior Sexual Misconduct Evidence in State Courts: Constitutional and Common Law Challenges, 52 AM. CRIM. L. REV. 321 (2015)
• Regulating Law Enforcement’s Use of Drones: The Need for State Legislation, 53 HARVARD J. ON LEGIS. 423 (2015)
• Arbitration by Combat, 20 MEDIA & ARTS L. REV. 164 (2015) (coauthored with Raj Shah)
• The Second Amendment Implications of Regulating 3D Printed Firearms, 31 SYRACUSE J. SCI. & TECH. L. 60 (2014-2015)
• Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion, 2013 J. L., TECH. & POL. 313 (2013)
• Second Amendment Challenges to Student Housing Firearms Bans: The Strength of the Home Analogy, 60 UCLA L. REV. 1046 (2013) (comment)
• Prosecuting the Undead: Federal Criminal Law in a World of Zombies, 61 UCLA L. REV. DISCOURSE 44 (2013)

Presentations

• Panelist: “Hiring Market Panel for VAPs,” Northeastern University School of Law Junior Scholars Conference (March 2, 2024)
• Presenter: “History as Precedent: Common Law Reasoning in Historical Investigation,” Northeastern University School of Law Junior Scholars Conference (March 1, 2024)
• Presenter: “Library Crime,” Northeastern University School of Law Junior Scholars Conference (March 1, 2024)
• Presenter: “History as Precedent: Common Law Reasoning in Historical Investigation,” 2024 National Conference of Constitutional Law Scholars (February 24, 2024)
• Presenter: “State Constitutional Prohibitions of Slavery and Involuntary Servitude,” 2024 ACS Constitutional Law Scholars Forum (February 16, 2024)
• Presenter: “Is Originalism Bullshit?” ClassCrits XIV (February 9, 2024)
• Panelist: “Looking 50 Years Into the Future, What Will Legal Education Look Like?” University of New Hampshire Law Review – 2024 Symposium: Risk Taking & Reform in Legal Education (January 26, 2024)
• Presenter: “Is Originalism Bullshit?” Texas Junior Scholars Faculty Workshop (Southern Methodist University School of Law) (November 30, 2023)
• Panelist: “The ‘Marketplace of Ideas:’ An Apt Metaphor or a Mistake?” National Communication Association – 2023 Annual Convention (November 18, 2023)
• Presenter: “Social Media Regulation in the Wake of 303 Creative,” University of St. Thomas Journal of Law and Public Policy – Fall 2023 Symposium, “Free Speech and the United States Constitution” (November 17, 2023)
• Presenter: “Constitutional Crimes,” Constitutional Law Colloquium (Loyola University Chicago School of Law) (November 10, 2023)
• Presenter, “Language Models, Plagiarism, and Legal Writing”, Legal Education’s Next Generation: Embracing Online, ChatGPT, and Technology in Pedagogy and Practice (St. Mary’s University School of Law) (September 21, 2023)
• Presenter, “Disingenuous Interpretation”, University of Idaho College of Law Faculty Colloquium (2023)
• Presenter, “Disingenuous Interpretation”, Rutgers Law School Faculty Colloquium (2023)
• Presenter, “Disingenuous Interpretation”, Constitutional Law Colloquium (Loyola University Chicago School of Law) (2022)
• Panelist, “Originalism and Common Good Constitutionalism,” Harvard Journal of Law and Public Policy Symposium (2022)

Media Highlights

• Avoid Harmful Bail Reform in Response to Recent Shootings, San Antonio Express-News, (September 15, 2023)
• Idaho Supreme Court’s Abortion Ruling Isn’t Originalist. It’s Based Only On Tradition, Idaho Statesman (Jan. 11, 2023)
• Common Good Constitutionalism Could Influence Judicial Practice, Bloomberg Law (Dec. 7, 2022)
• How California’s NDA Restrictions Cause More Harm Than Good for Survivors, The Hollywood Reporter (March 2020) (coauthored with Jill Basinger)