Mark W. Smith
Senior Fellow in Law and Public Policy; Presidential Scholar
Professor Mark W. Smith is a Presidential Scholar and a Senior Fellow in Law and Public Policy at The King’s College. Professor Smith is a former adjunct professor of law at the University of Kansas School of Law, where he researched and taught a course on constitutional law, the Second Amendment, and related topics.
His particular academic interests include:
- The appropriate role of text, history, and tradition in interpreting the Bill of Rights.
- English and early-American legal history.
- The legitimacy of the “tiers of scrutiny” framework in American constitutional law.
- The potential role of David Hackett Fischer’s Historians’ Fallacies: Toward a Logic of Historical Thought as a potential methodology for solving debates about the proper application of America’s history to resolve complex questions of constitutional interpretation.
- The proper relationship between the Supreme Court and the lower federal courts in the hierarchical federal judiciary.
- The use of “lawfare” in the American legal system.
Professor Smith is a sought out public policy expert, and his opinions are sought after by a broad range of media outlets. Policy Experts: Insider Guide to Public Policy Experts and Organizations and the Journalist Guide to Legal Policy Experts lists Professor Smith as a public policy expert on subjects touching on American constitutional law.
Professor Smith has lectured and presented widely at academic and scholarly conferences, and has spoken at the Yale Law School, Harvard Law School, Princeton University, Columbia Law School, NYU School of Law, and the Wharton Business School (MBA) at the University of Pennsylvania. Professor Smith is also a regular speaker at the Federalist Society’s National Lawyers Convention held each year in Washington, D.C. In the fall of 2019, he delivered an address on originalism, populism, and the Second Amendment at the Federalist Society’s National Lawyers Convention, which attracts some of the most influential and important legal scholars in the United States and around the world. In attendance at the 2019 Lawyers Convention were Samuel Alito, Associate Justice of the United States Supreme Court; Brett Kavanaugh, Associate Justice of the United States Supreme Court; Neil Gorsuch, Associate Justice of the United States Supreme Court; William Barr, the Attorney General of the United States; and numerous currently sitting judges. In the fall of 2020, Professor Smith spoke at the Federalist Society’s National Lawyers Convention to discuss the role of the Second Amendment in confronting civil unrest.
Professor Smith is a former editor of the New York University Environmental Law Journal and is a former guest editor of the Harvard Journal of Law and Public Policy. Professor Smith’s work has been published in the Harvard Journal of Law & Public Policy, the Arizona State University Corporate and Business Law Journal, the Oklahoma Law Review, and the Seton Hall Legislative Journal. He is also a New York Times bestselling author.
In addition to his research and writing efforts as Senior Fellow, Professor Smith also serves as the Legal Academic Research Director of the Project on Criminal Justice Reform, which explores the role of the Italian Enlightenment thinker Cesare Beccaria on America’s Founding generation and what role, if any, should Beccaria’s thinking have on modern day criminal justice issues.
Professor Smith has been called “[a] powerhouse lawyer,” a “rising public intellectual,” and a “high-stakes, high-profile Wall Street litigator.” His victories in the courtroom have captured the cover of The New York Times and his legal work has been reported throughout the country. Professor Smith has appeared as an expert legal analyst on CNN, CNBC, Bloomberg Television, CourtTV, the Fox News Channel, the Fox Business Channel, Newsmax and MSNBC. He has also appeared in the New York Times, the Washington Times, the Wall Street Journal, the Washington Free Beacon, and the Washington Examiner. He has appeared on numerous national radio shows including on shows on the POTUS Channel and the Patriot Channel, both on Sirius XM.
Following his graduation from the New York University School of Law in 1995, Professor Smith served as a law clerk for the Honorable D. Brook Bartlett, a judge for the United States District Court for the Western District of Missouri. Upon the completion of his clerkship, he joined the firm of Skadden, Arps, Slate, Meagher & Flom as an associate. In 1998, he moved to the firm of Kasowitz Benson Torres & Friedman LLP, where he was an equity partner. In 2007, he founded the firm of Smith Valliere PLLC, which had offices on Madison Avenue and at Rockefeller Plaza in midtown Manhattan. In 2015, Smith Valliere PLLC was named the Small Law Firm of the Year in New York City by SmartCEO Magazine.
Professor Smith has tried jury and bench trials in state and federal court, and has litigated cases involving billions of dollars. He has tried cases involving complex synthetic derivative financial products, real estate transactions, large corporate raiding efforts, partnership disputes and international commodity trades. As co-counsel in a federal jury trial, Professor Smith won a million-dollar judgment in a precedent-setting civil rights case that a cover story in The New York Times proclaimed to be the largest of its kind in New York history. He also tried the largest no-fault insurance trial in U.S. history for $23 million and represented New York businesses in a multi-billion-dollar challenge to New York’s participation in the “cap and trade” scheme called the Regional Greenhouse Gas Initiative. Professor Smith represented Texas state legislators as amicus counsel before the United States Supreme Court, and represented African American women seeking to start hair braiding businesses in a highly publicized constitutional challenge to New York state’s economic regulations. He represented a former United States Ambassador to Venezuela in a major federal lawsuit involving racketeering claims arising from alleged foreign corruption.
Outside of the courtroom, Professor Smith is a sought-after advisor to companies and individuals seeking to avoid “legal landmines,” i.e., activities that might lead to costly disputes or legal liability. He has counselled clients engaged in a wide variety of commercial transactions and business dealings including companies doing business in China, Hong Kong, and the European Union. He has also advised clients in connection with matters involving employment, commercial transactions, licensing, agency, assignment, intellectual property, film financing, publishing, settlements, and secured lending arrangements. He has advised creditors, debtors, and debtors-in-possession on bankruptcy issues. He has advised and counselled bestselling authors, corporate executives, entrepreneurs, bank trustees, bloggers, music organizations, attorneys, and celebrities.
- First They Came for the Gun Owners. New York, New York (2019)
- #Duped. New York, New York (2018)
- Disrobed. New York, New York. Random House Crown Forum (2006)
- The Official Handbook of the Vast Right Wing Conspiracy (2004)
- 2006 Midterm Edition: The Official Handbook of the Vast Right Wing Conspiracy
- 2008 Presidential Election: The Official Handbook of the Vast Right Wing Conspiracy
SELECTED ACADEMIC ARTICLES
- Harvard Journal of Law & Public Policy, “’Assault Weapon’ Bans: Unconstitutional Laws for a Made-Up Category of Firearms.” (Spring 2020)
- Pepperdine Law Review, “Cesare Beccaria and His Influence on the Founders: What Modern Law Can Learn About the Meaning and Purpose of the Second Amendment from Founding-Era Thought on the Right to Bear Arms” (accepted to Pepperdine Law Review, Volume XLVIII, 2020)
- Texas Tech Law Review, “Violence in the Streets? Probably Not. Can State Actors Satisfy the Heightened Tiers of Scrutiny Standards of Review Using Contemporary Criminological Studies in Heller/McDonald Challenges?” SSRN-id3545087 (2020) (accepted to Texas Tech Law Review, Volume 53, 2020)
- “Fischer’s Fallacies and Firearms in America: What Can David Hackett Fischer’s Historical Fallacies and Paradigms Teach Us About the Constitutional Text, History and Tradition?” SSRN-id544522 (2019)
- Seton Hall Legis. J., “Civil Liberties in a Post- 9/11 World” (2002)
- “Caucus Reform? Primary Reform? Delegate Reform? Lessons from the 2016 Political Party Presidential Nominating Process: A 50-State Review of the Legal and Political Mechanisms Deployed by the Republican Party for Selecting Delegates to the 2016 Republican National Convention,” SSRN-id3540486 (2015)
- Catholic University Law Review, “Second-Class Rights and Second-Class Americans: Applying Carolene Products Footnote 4 and the Court’s Enforcement of Nationally Accepted Norms Against Local Outlier Jurisdictions in Second Amendment Enforcement Litigations,” SSRN-id3546703 (2019) (accepted to Catholic University Law Review, 2020)
- Oklahoma Law Review, “A Congressional Call to Arms” (mentioned as Worth Reading by National Law Journal)
- “Heller v. District of Columbia’s ‘Common Use’ Test: How Does this Standard of Review Hold Up to the Modern American Gun Culture?” SSRN-id3538052 (2018)
- Arizona State University Corporate and Business Law Journal, “A Judicial Teaching Point: The Lesson of the Late Justice John Paul Stevens in Sony v. Universal City Studios as a Response to Civil Lawfare,” Arizona State University Corporate and Business Law Journal, Volume 1, Issue 2, Published June 1, 2020.
- “Textualism, Originalism, Populism and the Most Fundamental Constitutional Right: Why the Supreme Court Should Invoke Constitutional Protections to Protect Local Minorities in the Second Amendment Context,” SSRN-id3537756 (2019)
Time at King's: March 2016 to Present
New York University School of Law
University of South Carolina