Recent Faculty Works: Heidi Kitrosser, Matthew Kugler, Janice Nadler

Northwestern Pritzker School of Law is home to an incredible group of faculty members working at the intersections of law and many other disciplines. Their research and scholarship has helped advance the understanding of law and legal institutions in a diverse array of fields. Learn more in our “Recent Faculty Works” series about the latest publications and innovations of our faculty.

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In the Name of Accountability

98 Southern California Law Review, Northwestern Public Law Research Paper No. 25-24 (2025)

By Heidi Kitrosser, William W. Gurley Professor of Law

The Supreme Court has increasingly embraced legal doctrines that empower elected officials to hide politically inconvenient information and ideas from the American people. Two lines of precedent illuminate this phenomenon and its reach across seemingly disparate areas of the case law. The first is the area of First Amendment law known as government speech doctrine. The second is the area of separation of powers law known as unitary executive theory. The two doctrines not only have similar impacts on the free flow of information in the United States, they share a common rationale: political accountability. In this article, I explore the profound tension between the accountability rationale that underscores these legal doctrines and the doctrines’ negative impacts on the information ecosystem. I explain that the tension stems from two very different visions of accountability, and that the version underlying government speech doctrine and unitary executive theory is fatally oversimplified and anemic. I also explore the influence of each doctrine and its flawed accountability rationale outside of the courts. … Read More

Keywords:
unitary executive, government speech, government accountability

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True Threats, Public Safety, and Free Speech: An Empirical Analysis of Counterman’s Consequences

Journal of Criminal Law & Criminology, Northwestern Public Law Research Paper No. 25-28 (2025)

By Matthew Kugler, Professor of Law (coauthored with Jordan Birnholtz)

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role in preventing intimate partner and workplace violence. This first empirical study on Counterman’s effects finds that, while these concerns have largely not materialized, considerable uncertainty remains. In federal courts, Counterman has had a minimal impact on jury instructions, not resulted in any convictions being overturned, and has even been cited to justify admitting probative but damaging evidence of defendant intent. In sum, it has not benefited federal defendants. At the state level, by contrast, some courts have vacated convictions due to constitutionally deficient jury instructions and a minority of states have applied Counterman’s recklessness standard to civil cases, potentially signaling a shift in how those jurisdictions will address protective orders. No state stalking or harassment statutes have been invalidated, however, and the majority rule is to not apply Counterman to protective orders. But this status quo rests precariously on state courts deciding to minimize the sweep of Counterman. Many courts assume that Counterman does not apply to civil cases and that a large class of stalking and harassment laws exist independently of true threats doctrine. These conclusions are debatable and jurisdictional splits on them are already emerging. If the Supreme Court revisits these issues, the fears of Counterman’s critics may yet be realized. … Read More

Keywords:
threats, cybercrime, privacy, free speech

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Criminal Law, Intuitive Blame, and Moral Character

 Cambridge Handbook of Moral Psychology 523 (Bertram Malle & Philip Robbins eds. 2025)

By Janice Nadler, Nathaniel N. Nathanson Professor of Law

Blame and punishment doctrines within Anglo-American criminal law track in many ways psychological intuitions about blame and punishment, but there are variations as well. This chapter explains the legal doctrine and explores some of the ways in which criminal and psychological blame converge and diverge. The focus in this chapter is chiefly on intended but incomplete conduct, unintended outcomes, and the role of moral character in the rules of evidence. … Read More

Keywords:
punishment, blame, psychology, attitudes, criminal law, recklessness, moral character, mens rea, evidence