Coordination of Legal Interpreation

Legal interpretation as coordination
Piotr Bystranowski, Ivar Hannikainen & Kevin Tobia
Abstract: Is legal interpretation fundamentally guided by a law’s text or its purpose? This chapter revisits
this classic debate with new data from experimental jurisprudence. We present a “coordination theory of
legal interpretation,” on which legal interpretation is partly an exercise in coordination: judges seek to
interpret rules to match interpretations of their peers, other legal officials, and society. Past research
indicates that a statute’s plain meaning often constitutes a focal point around which different interpreters
successfully coordinate. One proposed explanation of this effect is that law’s text is more univocal than its
purpose; that while moral and political disagreement leads to debate about what purpose laws should serve,
people can more easily reach an accord on the meaning of a law’s plain text. We test this specific
explanation through a coordination game with information exchange and the results do not support it,
despite providing further evidence of the impact of coordination incentives on legal interpretation. Our
discussion outlines a different possible explanation of coordination around law’s text based on
considerations of publicity.
Keywords: coordination, expertise, interpretation, purposivism, textualism
Author Biographies:
Piotr Bystranowski is a researcher at the Interdisciplinary Centre for Ethics, Jagiellonian University.
Ivar Hannikainen is Ramón y Cajal Research Fellow in the Department of Philosophy I at the University
of Granada.
Kevin Tobia is an Associate Professor of Law at Georgetown University.
Acknowledgments: Guilherme Almeida, Bartosz Biskup, Vilius Dranseika, Tomasz Gizbert-Studnicki as

well as audiences at the Special Workshop on empirical approaches and their importance for the philosophy
of law at the 2022 IVR World Congress in Bucharest and at the Przegorzały Seminar in Legal Theory
provided useful feedback on earlier drafts. Piotr Bystranowski was supported by the European Research
Council (ERC) under the H2020 European Research Council research and innovation program (agreement
805498).
Electronic copy available at: https://ssrn.com/abstract=4444673

I. Introduction
How do judges, or other readers of law (including laypeople), attribute to a legal text one of its
many possible, or admissible, 1 meanings? While many philosophers of law have argued that legal
interpretation is essentially an exercise in discovering the true, or correct, or right meaning of a
given law (Dworkin 1986; MacCormick 1978), many others have noted the constructive nature of
the process of legal interpretation, whose outcome is necessarily dependent on situational factors.
In this Chapter, building both on prior legal philosophy and empirical evidence, we posit that one
such situational factor is the need to coordinate. As we argue, legal interpreters, independently of
their private preferences, are routinely incentivized to interpret laws in the way that is most likely
to converge with interpretations of others: judges, legal practitioners, and society at large. And, as
some methods of interpretation might be better suited to facilitate such coordination, this might
help to clarify their relative normative appeal.
We build on recent experimental jurisprudence research that has examined legal
interpretation (for a review, see Macleod 2023). Much of this work has emphasized the
longstanding debate about law’s text versus purpose. The empirical evidence indicates that both
factors shape people’s understanding of laws (e.g. Struchiner et al. 2020; see also Macleod 2023;
Tobia, Slocum, and Nourse 2022; Almeida et al. 2023b). Nevertheless, in practice, judges must
resolve interpretive disputes with one answer. So, when a law’s text and purpose conflict, judges
cannot cater to both. Recent work suggests that, in these circumstances, laypeople in most
countries favor a rule’s text, and this tendency is even stronger among legal experts (Hannikainen
et al. 2022). That same study provides a tentative answer as to why interpreters gravitate towards
text over purpose: specifically, because text serves as a focal point (Schelling 1960), which enables
coordination without communication. Legal interpreters are routinely incentivized to coordinate
their interpretations with other interpreters (e.g. a trial court judge has an incentive to avoid being
reversed on appeal and thus to coordinate with an unknown, future-appointed appellate judge). As
such, a salient textual focal point offers an explanation for the tendency towards textualism, even
in societies in which many individuals feel the pull of both text and purpose.
This prior work raises a new question: Why is text a focal point in interpretation? This
Chapter seeks to make progress on this question. In particular, we examine what we call the
1 Guastini (2019, 15) claims that the set of admissible meanings of a law is determined by “shared linguistic (syntactic,
semantic and pragmatic) rules, accepted methods of legal interpretation and existing juristic theories”.

“accord hypothesis,” a common explanation of the observed tendency to coordinate around text.
This hypothesis notes that coordination around purpose – even if potentially leading to better first-
order results – is impeded by the tendency for purpose attribution to be infused by moral and
political values (which, in turn, are diverse and heterogeneous in contemporary societies). A law’s
plain text, however, typically speaks in one voice—even to ideological rivals. When two
interpreters are incentivized to coordinate together about a law with univocal text and debatable
purpose, the univocal criterion—about which there is accord—is the clear focal point.
We test this intuitive hypothesis with a new experiment. Surprisingly, the results do not
support the accord hypothesis as the explanation of textual coordination. Experimentally
provoking agreement on purpose attribution, we found no evidence that people are more likely to
coordinate around purpose even if there is agreement regarding that purpose. Thus, it appears that
textual coordination is not driven merely by the fact that text provides greater accord. In the
discussion, we outline an alternative explanation of textual coordination informed by our present
results, which we call the “publicity” hypothesis. On this view, coordination does not stem from
alignment between interpreters’ private criteria (e.g. shared purpose attribution); rather, it is the
result of a shared understanding that the salient text is public and available, while the purpose is
not.
The results presented here have implications for the psychology of rules, providing insight
into why people gravitate towards text over purpose. We also discuss implications for recent
experimental jurisprudential work on the concept of a rule, and for law and legal interpretation.
II. Background
While the conflict between text and purpose in interpretation has been present across legal
history and different legal systems, in contemporary American legal literature it is standardly
framed as the choice between textualism and purposivism. 2 Textualists, as the name suggests,
prioritize the law’s text. For modern textualists, this means interpreting the text in line with its
meaning in context (semantics and pragmatics). Statutory purpose should not trump clear text, but
2 Even if we were to limit ourselves to the American context, textualism and purposivism hardly exhaust the universe
of widely discussed theories of legal interpretation. Intentionalism, pluralism, and pragmatism are other examples of
such theories. Thus, one should remember that our focus on textualism and purposivism is largely for exposition
purposes.

a modern textualist judge might appeal to purpose as a means to resolve ambiguity (Manning,
2006).
Purposivists assign a more substantial role to purpose. “Strong” purposivists allow a
statute’s purpose to trump its clear linguistic meaning. This view is often associated with the Holy
Trinity case (1892), in which the U.S. Supreme Court elevated a law’s spirit (purpose) over its
text.3 Today, many purposivists do not hold such a strong view. On a “weaker” purposivism,
purpose cannot trump clear text (contra strong purposivism), but it should not only be referenced
to resolve ambiguity (contra textualism). For example, one version of weaker purposivism would
understand text and purpose as complementary and fundamental to interpretation: “Text and
purpose are like the two blades of a scissors; neither does the job without the operation of the
other” (Eskridge 2016, p.9).
Some scholars question whether there are meaningful differences between modern,
context-sensitive textualism and modern (weaker) purposivism (e.g. Molot 2006), especially
insofar as the line between a law’s semantic context and its purpose can be blurry (see e.g. Tobia,
Slocum & Nourse 2022). This chapter engages with the longstanding legal philosophical debate
about when text and purpose clearly conflict. Because we are interested in uncontroversial cases
of conflict, for the remainder of the chapter “purposivism” refers to strong purposivism—much as
in most recent experimental jurisprudence literature (see generally Almeida et al. 2023b; 2024).
In the next section (II.A), we review prior experimental research about violation judgment
and legal interpretation, concluding that both text and purpose are relevant criteria. Then (in II.B),
we focus on a recent study that suggests that legal expertise and incentives to coordinate strengthen
people’s tendency towards textualism. Section II.C situates these new findings with a coordination
theory of legal interpretation. We summarize earlier scholarship that modeled legal phenomena as
coordination games, and we provide further arguments in favor of the thesis that legal interpreters
are routinely motivated to coordinate their interpretative choices around a focal point. This account
offers a partial explanation of the emergence of textualism: interpreters are incentivized to
coordinate, and text appears to be a strong focal point for coordination. But an important question
remains: Why is text (and not purpose) identified as the focal point for coordination? Part III
pursues this question with a new experimental study.
3 This is the usual account of Holy Trinity, but see Gales & Solan (2020) for a different reading.

A. Prior Research about Rule Violation, Text, and Purpose
The practical difference between textualism and purposivism is best visible in the
application of clear-cut rules, with clear-cut purposes. Such rules often admit of “over-inclusive”
and “under-inclusive cases.”4 In an over-inclusive case, the rule’s text applies to a situation that is
not covered by the rule’s purpose, and in an under-inclusive case, the rule’s purpose applies to a
situation that is not covered by the rule’s text.
To illustrate the over-inclusive/under-inclusive distinction, take a classic example. A rule’s
text prohibits driving “in excess of 60 miles per hour” (mph), and that rule’s purpose is to prevent
the imposition of unreasonable risks on other road users. Now, imagine two possible cases: (i) a
well-skilled driver drives at 70 mph on an empty road in good atmospheric conditions –imposing
no risks on other road users (“over-inclusion”: the behavior violates the rule’s text but not its
purpose); (ii) an inexperienced driver drives at 50 mph on a road full of pedestrians and cyclists,
in bad atmospheric conditions–imposing very unreasonable risks (“under-inclusion”: the behavior
violates the rule’s purpose but not its text). For a textualist, the rule is violated in the first, but not
in the second case. For a purposivist, the rule is violated in the second, but not the first, case.
This chapter builds on an emerging body of empirical literature that has experimentally
studied preferences for either approach to legal interpretation among laypeople and legal experts.
Early research demonstrated that adults distinguish between violations of the letter of a rule and
violations of its spirit (Garcia et al., 2014), with both elements independently influencing
assessments of culpability. Bregant and colleagues (2019) demonstrate that this pattern arises early
in development; when asked to consider cases in which a rule’s letter has been violated, children
exculpate the agent who complied with the purpose of the rule and condemn the agent who violated
it. A closer look at their results shows that children, like adults, agree that both cases violated the
rule altogether–indicating a developmentally early tendency toward textualism.
More recent studies have investigated the effects of text and purpose violation by
orthogonally manipulating both factors. In these studies, participants encounter a rule’s text (e.g.,
“No shoes are allowed inside John’s apartment”) and are informed about its purpose (e.g., “John
wants to keep his floor clean”). They are then asked to apply the rule to under-inclusive cases (e.g.,
4
See generally Schauer 1991. Hence, throughout this Chapter we focus on legal interpretation in concreto – that is,
on deciding how a given case is to be decided under a given legal rule – rather than on legal interpretation in abstracto,
that is, on attributing abstract meanings to legal rules (Guastini 2009).

a friend enters John’s apartment after walking barefoot in mud), over-inclusive cases (e.g., a friend
unboxes a pair of brand new shoes inside John’s apartment), and ‘control’ cases in which both text
and purpose were violated, or neither text nor purpose was violated.
Across a wide range of written rules, the dominant pattern is that both the letter and the
spirit of the rule influence whether a case is seen as violating the rule altogether; though,
importantly, the magnitude of the text effect greatly exceeds that of the purpose effect (Struchiner
et al., 2020). Follow-up research has uncovered that the effect of purpose violation is present when
the rule’s purpose is morally good, but negligible—or perhaps even absent entirely—when it is
immoral (Flanagan et al., 2023). In a cross-cultural study with laypeople in fifteen different
countries, this same pattern arises: A general textualist tendency (i.e., to decide that a given rule
was violated in the over-inclusive, but not in the under-inclusive, scenario) was observed, although
it varied widely across countries. When looking separately at countries, seven countries revealed
a distinctly textualist response pattern, whereas only two countries revealed a predominantly
purposivist pattern (Hannikainen et al., 2022). Furthermore, legal experts (law graduates) were
recruited in four countries (Finland, the Netherlands, Poland, and the United States) and asked to
judge the same set of cases. Despite wide cultural variation in laypeople’s responses, no such
variation was observed among legal experts, who consistently provided more textualist responses
when compared to their fellow non-lawyers. Finally, studies employing time pressure have begun
to elucidate the cognitive basis of interpretation. When asked to judge cases under time pressure
(i.e., by issuing a decision within five seconds), participants are more likely to exhibit a purposivist
tendency than when given ample time to reflect (i.e., no fewer than fifteen seconds; Flanagan et
al., 2023). In particular, the effect of text violation appears to strengthen over time (i.e., in the
comparison between the time pressure and forced delay conditions).
To recapitulate, the experimental literature provides evidence that both text and purpose
are relevant to lay interpretation, and that, across cultures, people are divided between textualist
and purposivist approaches to interpretation. Overall, laypeople gravitate towards textualism when
issuing rule-violation judgments, and this tendency is strengthened by legal training and the
opportunity to reflect.

B. Coordination, Expertise, and Textualism
The tendency for laypeople, and especially legal experts, to make textualist judgments in cases of
text-purpose conflict calls for an explanation. Returning to the 60 mph cases, there is a certain
puzzle in ascribing rule violation to (and, likely, imposing punishment on) the experienced driver
who poses no risk to other road users, while acquitting the inexperienced driver who poses a grave
risk to road safety despite abiding by the letter of the speed limit. What might explain this tendency
to disregard one’s sense of right and wrong and sternly heed the letter of the law, even when doing
so leads to suboptimal outcomes? Some scholars have alluded to the need for coordinated
interpretation within a judicial body (see, e.g., Scalia 1997; Manning 2006, p. 111). For instance,
Schauer (1990) notes that textualist interpretation can be advantageous by producing “institutional
stability,” that is, allowing judges to arrive at the same decision as a peer when both are confronted
with legally identical cases. In other words, because literal meaning is more likely to engender
agreement among interpreters, judges may prefer textualist judgments in response to a motivation
to coordinate their decisions–as long as incentives on coordination exceed judges’ motivation to
favor the morally preferable outcome.
This account makes an empirical prediction about the influence of coordination incentives
on legal interpretation. Specifically, introducing incentives on coordinated decision-making should
lead laypeople to strengthen their allegiance to textualist interpretation. To test this prediction,
Hannikainen and colleagues (2022) conducted an incentivized experiment in which participants
were randomly assigned to either a control or a coordination condition. In the control condition,
participants were asked to judge a series of cases. In these default circumstances, participants were
not offered coordination incentives; so, ex hypothesi, they ought to heed their personal preference
regarding the case. For example, suppose Player 1 prefers a textualist outcome (T1) and Player 2
prefers a purposivist outcome (P2). Both players decide on the basis of these private preferences
and we observe some degree of division or instability between textualist and purposivist
interpretation (represented by the top-right outcome in Fig 1. Control Condition).
Meanwhile, in the coordination condition, participants were randomly paired with another
participant. Both participants were informed that they and their partner would receive bonus
payments if they made the same decision about each case without communicating (i.e., if they
successfully coordinated their interpretations). Thus, when introducing a reward upon coordination,
Ci, players may individually prefer to coordinate around their preferred outcome. However, if both

seek to individually maximize their reward, they will arrive at the uncoordinated outcome and lose
the reward on coordination. Thus, one player in this game must relinquish their personal preference,
either T1 or P2, in order to secure the reward on coordination, Ci. The hypothesis that text is a focal
point predicts that players will coordinate around textualist judgment.
Control Condition Coordination Condition
Textualist Purposivist Textualist Purposivist

judgment judgment judgment judgment
Textualist P2 Textualist C2 P2
judgment T1 T1 judgment T1 + C1 T1
Purposivist P2 Purposivist P2 + C2
judgment judgment C1
Figure 1. Control and Coordination Conditions where Player 1 (lower left) prefers text and Player
2 (upper right) prefers purpose. The predicted outcome in each condition is shaded.
The results of the experiment bore out this hypothesis. In coordination conditions,
participants gravitated toward the textualist outcome–suggesting that participants with a purposivist
preference (e.g., P2) forfeited this preference in order to secure the reward on coordination, C2.
Thus, the emergence of textualism as a dominant strategy may stem from the operation of
coordination goals in legal decision-making plus people’s general recognition of the text (and not
the purpose) as a focal point for coordination.
C. Coordination Theory of Legal Interpretation
One explanation for the pattern of experimental results described in Section II.B is that
participants value the coordination incentive more than the value of expressing their own moral
judgment. Similarly, it is possible that legal interpreters value coordination with other legal actors
more than expressing their own moral judgment (Hannikainen et al. 2022). This could explain the
emergence of textualism, even in a society in which members (individually or at a population-
level) care about both text and purpose in interpretation.
This appeal to coordination builds on a rich literature on law and coordination (see,
Postema 1982; Finnis 1989; Schauer 1990; McAdams 2009; Nadler 2017; Dunlea & Heiphetz

2021). The idea of an intrinsic link between law and the game-theoretic concept of coordination
has been considered by legal philosophers who aimed at explicating the conventional nature of the
Hartian rule of recognition – the social practice that provides the foundation of law. In a seminal
paper, Gerald Postema (1982) argued that the social practice of identifying, interpreting, and
applying rules of law constitutes a complex coordination problem, which leads to the emergence
of a “coordinative convention” – the rule of recognition. The normative force of such a convention
depends on its success in “coordinating law-identifying and law-applying activities of officials and
lay persons” (Postema 1982: 199). While this proposal has been influentially criticized by some
philosophers (Green 1983; Marmor 2006), other versions of it have been put forward (Coleman
1998; den Hartog 2002; Lagerspetz 1995; see also Bertea 2021).
Law-and-economics scholars have employed coordination games to demonstrate that
private parties might be incentivized to abide by legal rules independently of the prospect of state-
imposed sanctions (Cooter 1998; McAdams 2000). The resulting focal point theory of legal
compliance (McAdams & Nadler 2005) posits that law is an instrument of solving coordination
problems by providing focal points around which private parties can coordinate their actions. Let
us illustrate this idea with a classical example: Imagine two vehicles approaching each other from
opposite directions on a public road. Both drivers are interested in avoiding a costly collision, thus
both would like to drive on the same side of the road (right-hand or left-hand one) as the other
driver. However, as each of them has two options (driving on the right or driving on the left) and
they cannot easily communicate, the optimal solution is not guaranteed. But, assuming there is a
specific traffic law rule (one that, say, tells everybody to drive on the right-hand side of the road),
such a rule provides a focal point, around which the two drivers can coordinate, achieving the
optimal outcome for each of them. Legal rules thus allow private parties to create rational
expectations regarding each other’s behavior and, in contexts in which everybody is interested in
coordination,5 such rules could be complied with on the basis of actors’ narrow self-interest, even
in the absence of the prospect of state-imposed sanctions.
5 Notice that ‘interest in coordination’ does not necessarily imply a perfect alignment of interests of all parties, as in
so called ‘pure’ coordination games (of which the choice of driving on the right or left is an example). In a coordination
situation, the interests of the parties might be (and very often are) in a partial conflict (mixed-motive games; Schelling
1960). What is necessary for calling something a coordination game, though, is that, even if there is a partial conflict,
all the parties still prefer any coordination solution to a non-coordination solution. For example, when two drivers
approach an intersection along perpendicular roads, each of them prefers to go first provided the other yields.
However, both prefer any coordination solution (going first when the other yields OR yielding when the other goes
first) to any non-coordination solution (both going first, resulting in a collision OR both yielding, resulting in an

While the theory presented in this Chapter resembles the focal point theory of legal
compliance in the central role it gives to the notion of focal point, it diverges from it in some other
crucial respects. First, while the focal point theory of legal compliance implicitly assumes that all
actors share an understanding of the relevant law and need only to coordinate their first-order
choices, the present theory focuses on situations in which there is a second-order coordination
problem – uncertainty regarding law itself. Independently of whether legal actors want to
coordinate their first-order actions, we predict that they are interested in coordinating their
interpretations of potentially unclear legal rules. Second, while the focal point theory of legal
compliance aims at explaining the behavior of private legal actors (individuals, corporations etc.) 6,
the present theory covers the same, if not greater, degree of behavior of legal officials and lawyers
(as those primarily concerned with the task of legal interpretation). In both these respects, the
present theory can be seen as drawing on theories of coordinative conventionalism in general
jurisprudence, as described above.
Yet, beyond establishing that text provides an interpretive focal point, recent research
provides no insight into why precisely it does so. In this work, we test one particularly intuitive
hypothesis about why the text may constitute the focal point for coordinated interpretation–which
we will call the accord hypothesis. It goes as follows: The literal meaning of a statute (e.g., a speed
limit of “60 miles per hour”) can often be applied consistently by a pair or group of interpreters.
For example, when asked to judge a case, multiple interpreters can consult the reading on the speed
radar and likely arrive at the same decision about the case. 7 Meanwhile, a purposive approach (i.e.,
consulting their overall judgment of whether the driver posed a risk to other road users) may be
more unstable across multiple interpreters. For example, interpreters may differ in the set of
driving behaviors that they consider to pose a risk to safety, or in their overall threshold or tolerance
to risky driving behavior. Furthermore, acknowledging these subjective components of purposive
evaluation can create the expectation that purposive interpretation is heterogenous. This problem
impasse). For that reason, as long as there is a commonly-known rule determining the right of way, each driver is
incentivized to comply with it, even if it is suboptimal for a given driver (i.e., making them yield rather than go first).
6 As prominent proponents of the focal point theory of legal compliance explained, the salience of legal norms “helps
people predict not what a court is likely to do … but rather that other people who are also aware of the law are likely
to do (McAdams & Nadler 2008).
7
Notice that the meaning of linguistic expressions itself can be seen as a convention, a solution to a recurrent
coordination problem (Lewis 1969; Skyrms 2003; Załuski 2013). This, however, is not something we analyze in the
present context, where we assume that the literal meaning of a statute is stable and exogenous to the presented model.
10

can be further compounded by the tendency for a statute’s purpose to be uncertain or even subject
to disagreement.8 This predicament–in which a textualist interpretation can easily generate accord,
while a purposivist interpretation is liable to create discord–may encourage legal interpreters to
treat a rule’s text as the focal point for coordination.
However, text’s univocality is a contingent matter (as is purpose’s non-univocality). One
could imagine a situation in which both the text and the purpose of a law are univocal, while
favoring opposing verdicts. Arguably, in such a situation, the purpose could provide a better focal
point — assuming that, in addition to being equally univocal, the purposivist interpretation is
morally preferable, by bringing about better first-order outcomes.9
Thus, the accord reading of the theory predicts that the more determined the purpose, the
more likely interpreters are to coordinate around the purpose rather than the text. Ultimately, in
situations in which legal actors expect each other to share an understanding of the text and the
purpose, the accord view would predict a reversal of the focal point from text to purpose—
especially, if first-order moral reasoning is brought to break a ‘tie’ between two equally available
coordinated outcomes.
III. The present research
In the main part of this Chapter, we further explicate this coordination theory of legal
interpretation and focus on some of its corollaries. Critically, we explore whether the theory
implies that legal interpreters will normally, but not necessarily, coordinate around the statutory
text. If the identification of an interpretive focal point is driven by univocality, text might fail to
provide the focal point if some other element – such as purpose – is understood as equally or more
univocal. This Part first develops the general coordination theory of legal interpretation, which is
compatible with various more specific, competing theories of textual coordination.
The present theory starts by noting that many actors involved in interpretation of a given
statute (judges, lawyers, private citizens) have incentives to coordinate around shared
8 Here we recount the typical textualist case. It is certainly possible that one’s moral or policy views also affects
attributions related to meaning (not just purpose). Farnsworth et al (2010) report evidence that participants’ policy
views affect their determinations about legal ambiguity.
9
This point has been used as an argument against textualism: In an everyday context, an agent who chooses to blindly
follow literal instructions even if the purpose behind those instructions is clear is considered an uncollaborative agent
(Marmor 2005).
11

understanding.10 For example, conventional wisdom holds that judges disvalue being reversed on
appeal (Cohen, 2019). If so, the trial court judge has an incentive to coordinate upon whatever
interpretation an appellate judge is most likely to give to the text. 11
More broadly, when judges write public opinions, they are expected to give reasons for
their decisions (Hart & Sacks 1958). Public scrutiny of these reasons plausibly generate
coordination incentives, to issue rulings consistent with the views of the wider legal community.
And lawyers are incentivized to understand law in a way that allows them to use arguments which
will be recognized as valid by judges. All the arguments used so far pointed to the observation that
legal officials and professionals might be motivated to coordinate their interpretations because of
their narrow personal self-interest. However, it is likely that, more fundamentally, the behavior of
legal officials can be explained by their professional, rather than personal, preferences: the
objective of achieving the “institutional coherence” of the legal system (Postema 1980: 352;
Postema 1982; Tamanaha 2021: 514) and sustaining its legitimacy by avoiding contradicting
decisions.
Private citizens also have plausible incentives to coordinate their interpretation of law with
others in the community. In many contexts, private legal actors are interested in coordinating their
interpretation precisely because some shared understanding of relevant legal rules can help solve
their first-order coordination problems (McAdams & Nadler 2008: 875), as demonstrated by
earlier focal point theories of law. Moreover, private actors have incentives to understand law just
as legal officials do. On Holmes’s view (1897), law is simply “prophecies of what the courts will
do in fact, and nothing more pretentious.” To understand how to avoid legal sanctions, private
citizens would do well to reflect on what the courts will do, which includes how the courts would
interpret a disputed law.
While private citizens’ incentives to coordinate with legal officials appear rather
uncontroversial, some would question whether legal officials have any incentives to coordinate
their interpretation with citizens. There are at least two ways in which the existence of such
10 This is not the only possible approach to modeling legal interpretation as a coordination game. See Załuski (2013,
Chapter 3), modeling legal interpretation as a game between the judge and the legislator or between the judge and the
social reality.
11 This does not mean that the judge will always rule in a coordination-maximizing way; the coordination incentive is
not the only factor that influences interpretation. But such a coordination incentive would make a difference on the
margin, for example when a trial court judge is tasked with interpreting a statute in a “hard case” with equally
sympathetic parties (i.e., a case in which the issue could reasonably be decided in favor of the plaintiff or defendant).
12

incentives can be defended. First, as some legal positivists posit, the concept of law implies that
judicial decisions are constrained by the expectations of the general public – because, were judicial
interpretation to depart too much from the common practice of interpretation, it would render legal
rules unintelligible and unable to perform their essential task of guiding action (Postema 1982).
Second, even if one disagrees that it is the concept of law that implies that legal officials are
motivated to coordinate their interpretative choices with citizens, it is possible to point to judges
(and other legal officials) having a plausible fair-notice-based incentive to coordinate; if legal
officials’ interpretation of law strays from how the law would be understood by ordinary citizens,
this raises concerns about fair notice (e.g. Barrett 2020) and threatens the rule of law.12
Note that much of this legal coordination takes place in the absence of explicit
communication. Trial court judges do not know whether their judgment will be appealed and to
which specific appellate judge the case would be assigned. In these circumstances–in which there
are incentives to coordinate, but little ability to secure coordination via communication–one would
expect actors to coordinate around a more general focal point. This would be some basis for legal
interpretation that is identifiable or salient. Under normal circumstances, some have argued,
statutory text provides a useful focal point (Schauer, 1990).
However, even in those contexts in which legal actors can communicate, this does not
necessarily diminish the role of a focal point. Both game theory and empirical research (see
Crawford 1998) suggest that so-called “cheap talk” (non-binding communication between players)
facilitates coordination in pure coordination games, when players’ interests are fully aligned. If,
however, players have different rankings of coordination solutions (e.g., legal actors prefer
different interpretations of a given statute), allowing them to talk might result in each just trying
to lobby for their preferred outcome (McAdams and Nadler 2005). Thus, a focal point existing
independently of interpreting actors might be instrumental for coordination even when those actors
can communicate with each other.
12
This argument, as well as many other used in this Section, indicates that our coordinative theory is concerned with
a subset of legal systems, primarily those of liberal democracies, adhering to the rule of law. In an autocracy deprived
of judicial independence, interpretive coordination, if any, would certainly look differently.
13

IV. Present study
Prior work has found that text constitutes a focal point for interpretation, but it is not clear why
interpreters are drawn to text as the focal point. One possibility is the text’s univocality:
One possibility … is that individuals in diverse communities have a similar understanding

of the rule’s literal meaning but are prone to disagree in their appraisals of whether the
incident violated the rule’s deeper purpose. The recognition of greater univocality in literal
meaning could instigate coordination around the rule’s text over its (morally divisive)
purpose.13
Our community is full of moral and political disagreement. Lawmakers, too, hold diverse
moral and political views, which requires compromise on legislation (Waldron 1999). It is natural
to think that different legislators pursue different aims in those legislative compromises, and that
the same piece of legislation could be thought (or hoped) to serve competing purposes–by the
enacting legislators or by members of the public. On the other hand, the law has only one enacted
text. A similar argument could apply to rules more broadly: There is only one way to accurately
report the language of a clearly stated or written rule (i.e., verbatim), but there may be multiple
ways to impute the purpose to the rule. The present study seeks to test this explanation. It examines
whether the focal point shifts when experimentally inducing accord with respect to the rule’s
prescribed purpose. The accord theory of coordination would expect this manipulation to shift
interpreters’ coordination away from text to purpose. All study materials, data, and code can be
found at: https://osf.io/3yexq/.
A. Materials
For purposes of this study, we drafted a series of hypothetical rules which would satisfy
the following conditions: (i) the rule’s text is clear and unambiguous; (ii) the rule is likely to be
considered legitimate by all participants, such that it is perceived to serve some legitimate purpose;
(iii) there are two possible purposes the rule can be construed to serve. Consider the following
example:
13 Hannikainen et al. (2022), p. 6.
14

The Illegal Drugs Act contains the following provision: “Any person found possessing over
10 grams of cocaine shall be punished”. There are conflicting opinions on the purpose this
rule is supposed to serve. Some say it’s not meant to interfere with private consumption of
cocaine, but it’s directed against drug dealers (as it’s drug dealers that are likely to possess
larger amounts of drugs). Others, however, claim that the purpose of the rule is also to
deter consumers from storing and consuming excessive amounts of cocaine.
John is an occasional consumer of small amounts of cocaine. This time, however, he
has bought more cocaine, as he’s about to start his two-week holidays in the mountains.
On his way to the mountains, he’s stopped by the police, who find that he is carrying 15
grams of cocaine in his car.
In this example, John clearly violated the text of the law. Yet, whether he violated its
purpose depends on which of two potential purposes the interpreter endorses: the broader or more
encompassing purpose (i.e., to deter storage and consumption), which John violated, or the
narrower or more restrictive purpose (i.e., to combat drug-dealing), with which John complied.
We devised a set of eight cases obeying this general structure. Four cases described an
agent who violated the rule’s text and four described an agent who complied with the rule’s text.
In each group of four cases, two cases violated progressive values (such that progressives would
favor conviction and the broader view of the rule’s purpose, and conservatives would favor
acquittal and the narrower view) and two cases violated conservative values (vice versa). Lastly,
as in the Illegal Drugs Act example, in every case, the agent violated the broader purpose but
complied with the narrower purpose.
In this study, we are interested in the behavior of participants who attribute the non-
textualist purpose (i.e., purpose that is inconsistent with the rule’s text in a given context) to
the rule: When is their interpretation guided by the purpose and when by the text?
Values
violated Narrow Broad
Rule M M
by the purpose purpose
agent
Violation Cases
Cons. Prohibition Fighting D: 6.13 Limiting D: 3.61
of drug- R: 5.93 drug R: 4.64
possessing dealing consumptio
over 10 n
grams of
cocaine
15

Cons. Prohibition Averting D: 5.88 Averting the D: 2.75
of deriving exploitation R: 5.41 moral R: 4.69
financial of women wrong of
gain from prostitution
prostitution
Lib. Duty to Ensuring D: 5.70 Reducing D: 5.03
obtain a certification R: 5.71 the number R: 3.51
permit to of firearms of firearm
carry a
firearm
Lib. Prohibition Averting D: 5.19 Averting D: 4.92
of sexual jokes R: 5.20 any kind of R: 4.65
joking in the addressed at sexual
workplace specific joking
people
Compliance Cases
Cons. Prohibition Encouragin D: 5.02 Reducing D: 3.11
of g R: 4.88 the number R: 4.20
immigration immigration of
by people of educated immigrants
without a people
higher
degree
Cons. Banning Preventing D: 5.90 Preventing D: 4.86
member of a terrorists’ R: 6.07 any R: 5.28
terrorist entry radicalized
group from person’s
entering entry
country
Lib. Prohibition Preventing D: 3.71 Preventing D: 5.58
of having sex in the R: 4.44 sex in the R: 5.11
unconsented presence of absence of
sex explicit explicit
objection consent
Lib. Upholding Fostering D: 4.05 Protection D: 5.47
freedom of the R: 5.25 of religious R: 4.57
religion in expression minorities
schools of religious
sentiment
Table 1. Case Type and Mean Agreement Ratings (M) of the Rule’s Purposes by Democratic (D)
and Republican (R) participants. Higher ratings indicate greater endorsement of the proposed
purpose.
B. Pre-test
To validate our stimuli, we conducted a pretest with 199 United States residents (97
women; 99 self-identified Republicans, 100 Democrats). Participants saw all 8 vignettes and, for
16

each, were asked whether the actor in a given case violated the rule, what punishment they
deserved, to what extent the participant favored the narrow and broad purposes behind the rule.
We confirmed that rule violation judgments depended on participant’s preferred purpose
(B = 0.26, t = 7.20, p < .001), but not on their views on what the actual purpose is (B = 0.01, t =
0.30, p = .77), after controlling for the effect of case-type, B = 2.57, t = 6.87, p < .001. We also
ascertained that the issues were politically divisive (see Appendix 2), such that conservative and
liberal participants differed in their tendency to ascribe rule violation to the agents, and in their
preferences for the purpose that each rule should serve.
C. Participants and Procedure
For the main study, we recruited a politically diverse sample of 605 US residents (275
women; age: M = 37.3, SD = 13.2), by applying 1:1 stratification of (n = 300) Democrats and
Republicans/Independents (n = 305; 196 Republicans, 109 Independents). Study instructions
explained that participants were paired with a different player (each coming from a politically
diverse sample) on each trial of ‘the Judging Game’, that on each trial they would receive
information about their partner, and that the goal of the task is to issue the same verdict as their
partner in order to receive a bonus payment.
Participants viewed all eight cases in the stimulus set in a randomized order. For each trial,
participants were first asked to make two judgments about the rule: a dichotomous comprehension
question about the literal meaning of the rule (e.g., “Taken literally, the Illegal Drugs Act says that
nobody is allowed to possess over 10 grams of cocaine.”, “I agree”, or “I disagree”), and a
trichotomous purpose preference (e.g., “In your opinion, what should the purpose of the Illegal
Drugs Act be?”, “primarily to prevent excessive private cocaine consumption” “equally to prevent
excessive private cocaine consumption and to combat drug-dealing”, or “primarily to combat
drug-dealing”).
Next, on each trial, participants were randomly assigned to one of three experimental
conditions: Control (in which no additional information about Player 2 was provided other than
they can be both Republicans or Democrats), Purpose-Match (in which participants were informed
that Player 2 had the same belief about the purpose as they did), or Full-Match (in which
participants were informed that Player 2 had the same belief about the purpose and the text as they
did). In all conditions, the participants were told that their partner received exactly the same kind
17

of information about them. On the following page, participants were randomly paired with a Player
2 and provided information about Player 2 depending on the treatment assignment. They were
reminded of the coordination goal, and asked to issue a dichotomous judgment about whether the
rule was violated (e.g., “Did John violate the Illegal Drugs Act?”, 1 = “Yes”, 0 = “No”). At the
end of the study, participants provided basic sociodemographic information: on their age, gender,
religiosity, educational attainment and political orientation.
Figure 1. Study Protocol.

For purposes of comparison, we conducted a version of this study (N = 300) in which
participants were simply asked to judge the same set of cases (without a game partner, special
instructions, or incentives). Finally, we conducted a small-scale qualitative follow-up study (N =
64), to examine participants’ reasoning processes throughout the coordination task.
D. Analysis Plan
Based on pilot data, and previous evidence, we expect the probability of a violation decision to
depend on Case-Type (1 = violation, 0 = compliance), and to be greater when participants endorse
18

the broad purpose than the narrow purpose (0 = narrow, 0.5 = both, 1 = broad). Thus, our basic
model of violation decisions reflects the addition of these two effects (plus an intercept, c):
Violation = a × Case-Type + b × Purpose-Preference + c
Our primary analyses ask how the coefficients of case-type, a, and purpose preference, b, differ
across experimental conditions, by allowing condition to moderate both effects:
Violation = Condition × (Case-Type + Purpose-Preference)
In elaborations on this primary analysis, we replace the nominal Condition term with a series of
dummy-coded variables: TextAccord (1 = participants are paired on their agreement about the
literal meaning; 0 = no information about partner’s text judgment), PurposeAccord (1 =
participants are paired on their shared purpose preference; 0 = no information about partner’s
purpose preference), and Coordination (1 = participant is a player in the coordination game, 0 =
participant is deciding in an unpaired and un-incentivized context).
E. Results
1. Text persists as the focal point despite purpose accord

Regarding rule violation judgments, we observed a pronounced tendency toward
textualism: participants ascribed rule violation in over-inclusive cases (prob. = 95%) but not in
under-inclusive cases (prob. = 17%), z = 14.03, p <.001. Entering participants’ preferred purpose
into the model improved fit–revealing an effect of preferred purpose, OR = 3.65, z = 8.63, after
controlling for the effect of case type, OR = 97.20, z = 14.04, both ps < .001.
To understand whether participants’ preferred purpose would influence decisions more
strongly when knowing their partner’s (shared) purpose preference, we allowed the effect of
preferred purpose to interact with experimental condition. In this model, when accounting for the
effects of case type, 𝜒2 = 194.78, and preferred purpose, 𝜒2 = 72.65 (both ps < .001), we found that
the influence of purpose preferences varied marginally across conditions, 𝜒2 = 5.02, p = .081. No
main effect of condition, 𝜒2 = 0.51, p = .77, or interaction with case-type, 𝜒2 = 1.66, p = .44, were
observed. The effect of purpose preference was stronger in the purpose-matched condition than in
19

the control condition, OR = 1.16, z = -2.19, p = .029. Meanwhile, the effect in the fully-matched
condition did not differ from either the control, z = 0.74, p = .46, or the purpose-matched, z = -
1.50, p = .13, conditions (see Figure 1b).
Figure 2. (A) Probability of rule violation judgment by condition, case-type and purpose
preference. The grey lines represent the corresponding relationships between purpose preference
and violation judgments in the no-incentive condition. (B) Effects of case-type and purpose
preference (expressed as odds ratios) in each condition. The horizontal bands represent the
magnitude of the effects in the no-incentive condition.
Convergent evidence was found when dummy-coding experimental conditions according

to whether participants’ purpose preferences and textual interpretations were shared. The effect of
preferred purpose depended on whether players knew about each other’s preferred purpose, 𝜒2 =
20

5.74, p = .017: Specifically, the effect of preferred purpose was stronger with purpose-matching
than without, B = 0.67, z = 2.40, p = .017. Meanwhile, the effect of case type did not differ with
versus without text-matching, 𝜒2 = 0.02, p = .89 (see Figure 1a). No main effects of purpose-
matching or text-matching were observed, ps > .52. Some participants gravitated toward the
purposivist focal point, but most persisted in their treatment of the literal meaning as the focal
point, despite being matched with a like-minded partner with whom they shared a purposive
interpretation.
To ascertain whether the coordination conditions promoted textualism relative to a no-
incentive condition (n = 300), we conducted a supplementary study. In this no-incentive condition,
participants ascribed rule violation in over-inclusive cases (prob. = 93%) but not in under-inclusive
cases (prob. = 22%), z = 11.2, p <.001. Entering participants’ preferred purpose into the model
revealed an independent effect on violation decisions, OR = 2.11, z = 4.28, p < .001. Comparing
the no-incentive and incentivized conditions in a single model, we observed an incentive×case-
type interaction, χ2 = 15.65, p < .001, but no main effect of incentives, χ2 = 0.27, p = .60, or
incentive×purpose preference interaction, χ2 = 0.56, p = .45.
2. No improvements in coordination from information exchange

Does partner information affect the likelihood of successful coordination? To answer this
question, for each case, we defined coordination as the probability of drawing a matching pair of
decisions. It can be shown that the probability p of a matched pair is given by:
p = [∑i ni·(ni-1)]/ N·(N-1)
where N = ∑i ni .
The numerator represents the sum of coordinated outcomes, and the denominator
represents the sum of total (coordinated and uncoordinated) outcomes. Suppose we have ten
participants (N = 10), of whom 7 provide a violation decision (nViolation = 7) and 3 a compliance
decision (nCompliance = 3) on a particular case. The total number of outcomes is derived by taking
the product of the number of participants, N, by the number of participants with whom they can be
matched (every other participant except themselves, N - 1). Thus, the number of total outcomes is
90. The number of coordinated outcomes is equal to the sum of coordinated violation outcomes
and coordinated compliance outcomes. The number of coordinated violation outcomes is given by
the product of the number of violation decisions by the number of potential partners with whom
21

each participant in the violation group would achieve coordination (i.e., the number of violation
decisions minus their own); 7 × (7 - 1) = 42. By the same logic, the number of coordinated
compliance outcomes is equal to 3 × (3 - 1), or 6. Finally, we divide the sum of coordinated
outcomes, 42 + 6, by the number of total outcomes, 90, to establish that the probability of
coordination within this group of ten participants equals 48/90 or 53%.
The observed probability of a coordinated outcome in the treatment conditions ranged
between .83 and .88 for overinclusion cases, and between .67 and .69 for underinclusion cases (see
Figure 2). In a logistic regression, we then regressed the probability of a coordinated outcome on
case-type, condition, and the case-type by condition interactions–and established that this
difference between case-types was significant, χ2 = 23.70, p < .001. In this same model, there were
no effects of text-matching, χ2 = 1.16, p = .28, BF01 = 3.69, or purpose-matching, χ2 = 0.00, p =
.98, BF01 = 3.65. In other words, providing partner information (i.e., the added cost of
communicating about the text and the purpose) did not, at least in these data, ensure gains in
coordination. Meanwhile, in the un-incentivized condition, the probability of coordination was .81
for overinclusion cases, and .63 for underinclusion cases (see Figure 2). Entering incentivization
into the model revealed an effect of incentives, χ2 = 4.15, p = .042, BF10 = 2.18.
22

Figure 3. (A) Vertical and horizontal lines represent the mean probability of a non-violation
decision by condition. The area of the shaded quadrants represents the probability of coordinating
around non-violation (bottom-left) and violation (top-right). Unshaded quadrants represent un-
coordinated outcomes. (B) Probability of a coordination outcome, p(C), as a function of the
proportion of non-violation decisions, p(x), where p(C) = p(x)2 + p(1 - x)2. Colored dots represent
the observed means for each scenario and condition.
3. Explicit deference to text over moral appraisal
23

Lastly, we conducted a small qualitative follow-up study in the full-match condition (N =
64) in order to inspect participants’ reasoning about these cases. These data replicated the tendency
toward textualism: such that overinclusion cases were seen as violations (prob. = 99%) while
underinclusion cases were not (prob. = 4%), z = 2.71, p = .007. With a small sample size, the effect
of participants’ preferred purpose did not achieve statistical significance, z = 1.54, p = .12. We
focused on understanding participants’ line of reasoning when experiencing conflict between their
literal interpretation and their preferred purpose.
[Example 1] … he broke the rule. I do not agree with it but I was asked if according to the
rule did he break it.
[Example 2] …did not make any morally ambiguous choices, … however he was still not
legal in his district on paper.
Examples 1 and 2 illustrate participants' recognition that the agent violated the text, even
if by their and their partner’s preferred (i.e., narrower) sense of the rule’s purpose, the agent ought
to be exonerated.
[Example 3] … even though John did not act morally in this situation, and should probably
be punished, he did not violate the rule based on the specific wording that the rule stated.
I felt like the other player would of [sic] had the same thought process.
Example 3 illustrates the opposite circumstance—one in which participants and their
partners favored a broader understanding of the purpose, which they considered that the agent had
violated. The participant states their disapproval of the agent’s behavior and yet concludes that
they ultimately complied with the rule (revealing a textualist understanding). More importantly,
the participant even reports an expectation—which is critical to the emergence of a focal point—
that their partner will reach the same conclusion. In all three examples, participants evidently
recognized a tension between their shared moral attitudes and a textualist application of the rule.
When facing this tension, most participants ultimately subjugated their shared values to the rule’s
literal meaning, and expected their coordination partner to do the same. These supplementary
findings provide further, qualitative evidence against the accord explanation: Despite overtly
acknowledging inter-judge agreement on the purposive interpretation of the rule, most participants
treated this private moral agreement as irrelevant to the coordinated interpretation of the rule.
24

V. General discussion
A. Why People Coordinate Around Text over Purpose
Past work has shown that text and purpose both influence legal interpretation (Garcia et
al., 2014; Struchiner et al., 2020)—at least when the law’s purpose is viewed as benign (Flanagan
et al., 2023). Overall, text appears to exert a stronger effect than purposive considerations,
especially among trained lawyers and judges—and recent research has suggested that textualist
tendencies may reflect incentives on coordinated legal interpretation (Hannikainen et al., 2022).
In this Chapter, we develop this coordination theory of legal interpretation by empirically testing
one particular explanation for why the text might constitute a focal point for coordination.
To this end, we experimentally manipulated the amount and nature of partner information
in a coordination game. According to the accord view, the reason why a rule’s text typically
provides a focal point is that interpretive agreement about the text is more likely (and is perceived
to be more likely) than about the purpose. In other words, when seeking to arrive at a coordinated
interpretation with another judge, it is rational to opt for the decisional criterion that is more likely
to engender interpretive agreement. To test this explanation, we devised a set of legal rules that
met this criterion: that is, a set of rules for which discrepancy in the purposive interpretation of
rules is greater than disagreement in the textual interpretation of rules. We then compared
judgments in the absence of information on the interpretive preferences of the partner (uncertainty
conditions) to judgments under conditions in which partner agreement on the purposive
interpretation of the rules was mutually known (accord conditions).
1. Evidence against the accord hypothesis

The accord hypothesis would predict that experimentally revealing agreement about the
rule’s purpose (by pairing participants who share an understanding of the rule’s purpose) would
have either shifted the focal point onto the purpose or, at least, increased the number of deviations
from the textualist equilibrium. Yet few participants revealed this effect; a large majority persisted
in their tendency to provide textualist interpretations–despite knowing that they mutually preferred
the purposivist outcome. Participants’ justifications revealed their acknowledgement of this shared
understanding of the purpose, and indicated that they tended to disregard the cue of a purposivist
coordination outcome and moral reading of the case as irrelevant to their verdicts, while embracing
25

a conscious norm that the text constitutes the rule. These results provide evidence against the
accord explanation: In other words, the emergence of a textualist focal point in legal interpretation
is not due to a greater univocality of the text than of the purpose.
2. A new hypothesis: Publicity

In a broader sense, these results suggest that the coordination exercise is not focused on
ascertaining a private agreement between members of the legal interpretative community: Our
experiment ensured private agreement about purpose, which did not increase coordination around
purpose.
As an alternative hypothesis, consider that the coordination exercise is focused on
elucidating some public aspect of the rule, how the rule would be understood by ‘non-players,’ or
outsiders. Some aspect of the public salience of the rule’s text renders it the focal point–even when
interpreters could in principle reach a private agreement around their shared (and known to be
shared) purpose attribution.
From this perspective, textualist interpretation prevails because the statutory text is
understood to be highly salient or public. Purpose, on the other hand, is often understood as less
salient. Often purpose is not verbalized in similar detail, 14 and is yet to be uncovered in an
interpretive process. On this account, two interpreters aware that they privately agree about the
law’s purpose might nevertheless coordinate around the text, on account of its greater publicity. 15
This interpretation might derive some degree of support from the comparison between the
incentive and no-incentive conditions: When compared to the no incentive condition, regression
models indicated that elevated textualism in the incentive conditions does not reflect a weaker
effect of purpose preferences (i.e., suppression of one’s private preference in order to coordinate
interpretations)–but rather a stronger effect of text (i.e., more rigid alignment with the rule’s
textualist interpretation).
Recent research provides indirect evidence for the publicity hypothesis, insofar as variation
in a purpose’s publicity can impact legal interpretation (Flanagan et al., 2023). In that study,
14 Notice that even if the purpose of a statute is in some way legally enacted, it tends to be “abstract, general, vague,
or declaratory” (Aalto-Heinila 2023).
15 Legal officials might all agree about a law’s purpose, but anticipating the possibility of another not sharing that
purpose attribution, they might ultimately choose to coordinate around text, the more salient aspect of the law. This
can be seen as a rule of law advantage, as the publicity theory leads to predictability for those who agree about the
law’s purpose and those who do not.
26

participants considered written rules–e.g., a ‘No Shoes in the House’ rule–and were randomly
assigned to one of two conditions. In one condition, the rule served the purpose that any ordinary
person would infer from the household rule’s text–that is, its public purpose (in this case, of
keeping the floors clean). In the other experimental condition, the rule unexpectedly served an
alternative, obscure purpose–namely, to limit noise for downstairs’ neighbors. Participants showed
a greater tendency to consider the public purpose as relevant when applying the rule: An individual
who dirtied the floors was seen as violating the first (normal) rule, whereas an agent who made
noise was not seen as having violated the second (abnormal) rule to the same degree. Nevertheless,
future studies ought to directly test the publicity explanation, for example, by manipulating
whether the rule’s purpose is included versus excluded from the rule’s written formulation. This
hypothesis would predict a greater propensity to coordinate around the rule’s purpose when it is
public than when it is not. In this regard, the tendency for text to constitute a focal point can bear
on existing debates about the virtues of textualism, in particular, by buttressing textualism’s claim
to promote the rule of law (e.g. Scalia 1997) and to respect ordinary people (see, e.g. Barrett 2017).
B. Implications and Limitations
1. Implications
The central phenomenon discussed here, that people tend to coordinate around text rather
than purpose in interpretation, is relevant to fundamental discussions in philosophy of law. Take,
for example, one standard argument against (a strong version of) legal realism (Troper 2021):
Legal realists standardly assume that (1) judicial interpretation of law is an essentially constructive
activity, not bound by ex ante rules, thus (2) judicial interpretation is driven by judges’ personal,
moral and political preferences. However, (2) is hard to square with the observed coherence and
continuity of the jurisprudence of courts–assuming a significant degree of heterogeneity of
personal preferences among judges, how could legal realists explain the fact that interpretative
decisions of judges are largely consistent with each other? But now, the coordination theory
implies that even if one assumes (1), it does not necessarily entail (2). Even if judges enjoy much
interpretative discretion, their private views might be still outweighed by the motivation to
coordinate around some focal point. The new study here supports an even stronger claim: Where
there are strong coordination incentives, interpreters will not only choose text against their
27

individual preference; they will do so even when there is public knowledge that the coordinating
interpreter shares their private preference.
Coordination on text over purpose is also in some tension with another line of recent
experimental jurisprudential research. Recent work has shown that when asked to reflect on what
truly constitutes a law, people perceive a rule’s purpose as the “deeper” criterion of interpretation
and text as the more superficial criterion (e.g. Almeida et al. 2023-b). If purpose is understood as
deeper or more fundamental, why do people favor text when forced to choose one?
One possible resolution might appeal to the different natures of these tasks. When people
are invited to reflect philosophically on what the “true law” is, they point to purpose. But when
people are invited to apply (e.g. legal) rules, they rely more on text. Coordination could fit this
picture well. There are no incentives to coordinate with others in one’s private philosophizing, 16
but there are stronger coordination incentives in applying rules.
The present study adds to this debate by showing that, even when the purpose attribution
is known to be shared between two coordinating interpreters, text exerts a stronger pull. This raises
a future question: Why do people heed the letter of the law in interpretation, which they consider
to be the more superficial dimension, at the expense of the purpose which they consider its deeper
or more essential dimension?
This chapter’s study also has implications for law and legal scholarship. They provide
insight into how lay jurors interpret laws (see, e.g. Solan 2003). While the present study did not
examine legal experts, past work on this topic has suggested similarities between lay and expert
evaluations, as well as a stronger expert tendency towards textualism (Hannikainen et al. 2022).
Beyond these descriptive contributions, the results also inform normative and prescriptive
debates. For example, consider a theory that jurors should rely on purpose in interpretation. If so,
the results here suggest not only that heterogenous juries will lean towards text, but that even
homogenous purposive juries might do so. (We say “might” because the work here does not
capture all relevant jury dynamics; for one, jurors may communicate with each other).
Future work should test the “publicity” hypothesis. But if that hypothesis is on the right
track, it would also have legal implications. Again, consider a normative purposivist theory. If we
16
However, this may not be true in more social philosophical contexts. Today philosophy is not only an activity but
a profession, and there could be pressures to coordinate and implications of non-coordination. As Robert Cummins
(1998, 116) put it, “[t]hose who do not share the intuitions are simply not invited to the games.”
28

have reason to promote purposive interpretation, and the publicity hypothesis is right, lawmakers
should make purpose more publicly salient. Arguably, some current dynamics in the United States
push purpose in the opposite direction. In U.S. law, acts passed by Congress move through a
“congressional bureaucracy.” Sometimes, the original act contains statements of purpose in the
text, which are later removed when the law is printed in the U.S. Code. As Gluck & Cross (2020)
note, 1655: “A statute that is repeatedly amended to get within a revenue or budget score
incorporates the assumptions of those estimates. Statutes drafted with purpose clauses that no
longer appear in the Code because OLRC moves purpose clauses to small side notes does not make
those statutes less purposive and it does not erase the fact that Congress actually enacted purpose
into statutory text in the first place. Should textualist courts ignore this?”
2. Limitations of the present study
First, coordination is just one factor affecting interpretation. While we assume that
incentives to coordinate are common among legal interpreters, coordination is just one of the
factors on which the choice of the method of interpretation depends. Depending on the context and
on a given interpreter, other factors can prevail. The interpreter might choose to apply what they
personally find the right method of interpretation, or the method that requires least effort to apply
in a given context.
Relatedly, other factors could outweigh the coordination incentive. Moreover, while we
assume that legal interpreters are incentivized to coordinate in regular, everyday legal contexts,
extraordinary cases could disincentivize coordination. Imagine a lower court judge who believes
strongly in their (e.g. purposive) interpretation and hopes for an appellate court to consider and
uphold their opinion on appeal. Such a judge might refuse to coordinate with most other judges.
Here this judge’s ultimate goal is to move to a new coordinative equilibrium..
Third, our new study only examines lay participants’ legal reasoning, but lay legal
reasoning may not match expert legal reasoning (cf. Tobia 2022; Jimenez 2022). As such, some
might object that our results cannot bear on theories of expert legal interpretation. We do not
entirely agree. Although a study of expert legal reasoning would also be informative, the study
here bears on some theories of lay and expert interpretive reasoning that have been developed in
prior work. Previous work has found a tendency for textualism in laypeople, which is elevated for
legal experts (Hannikainen et al. 2022). One theory that emerged from that work was a single
account of both lay and expert interpretation. Our study (of laypeople) can test that theory, which
29

makes predictions about both the lay textualist tendency and the elevated textualism in experts.
Our results (about laypeople) provide evidence against the general “accord” theory: Private
agreement does not drive textualist coordination. Of course, it is possible to postulate a new accord
theory that is limited to experts: private agreement explains expert coordination on text but not lay
coordination on text. We agree that to address that new and more specific theory, it would be useful
to use materials that experimentally offer legal experts incentives to to coordinate..
Finally, this study directly studied just one aspect of legal interpretation: the choice
between purposivism and textualism in the context of concrete rule-violation cases. While
ascribing rule violation is a legal task most familiar to lay participants (and one that has been most
broadly studied in the existing experimental jurisprudence literature), it is hardly the bread and
butter of legal interpretation. Hopefully, future scholarship will test the hypotheses discussed in
this Chapter on a more representative sample of legal interpretation tasks.
C. Conclusion
There is a rich literature documenting and defending the importance of coordination in law
and legal compliance. This chapter has built on this work, developing a coordination theory of
legal interpretation. Specifically, we consider a previous finding that laypeople are overall more
inclined to rely on text than purpose in interpretation–and that this tendency is heighted with
incentives to coordinate and legal expertise (Hannikainen et al. 2022). One intuitive explanation
of this finding begins by noting that a law’s purpose can be divisive, while its text is, typically,
univocal. So, interpreters incentivized to coordinate will do so around a law’s univocal textual
focal point over its morally controversial purpose. Surprisingly, however, this explanation does
not appear to be right. This chapter’s study finds that, even when interpreters share a purposive
attribution (and this accord is public knowledge), they still coordinate around text. We propose
that future research should investigate a different explanation of a textual focal point: Coordination
is not fostered by private agreement about a contested criterion, but rather by one criterion’s public
nature.
30

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34

Appendix 1: Stimuli
Possession (liberal-overinclusive)
The Illegal Drugs Act contains the following provision: “Any person found possessing over 10
grams of cocaine shall be punished”. There are conflicting opinions on the purpose this rule is
supposed to serve. Some say it’s not meant to interfere with private consumption of cocaine, but
it’s directed against drug dealers (as it’s drug dealers that are likely to possess larger amounts of
drugs). Others, however, claim that the purpose of the rule is also to deter consumers from
storing and consuming excessive amounts of cocaine.
John is an occasional consumer of small amounts of cocaine. This time, however, he has bought
more cocaine, as he’s about to start his two-week holidays in the mountains. On his way to the
mountains, he’s stopped by the police, who find that he is carrying 15 grams of cocaine in his
car.
Rape (liberal-underinclusive)
The Sex Crimes Ordinance contains the following provision: “Engaging in a sexual act involving
physical violence and/or objection on behalf of any of the parties shall be treated as an act of
rape and be punished”. There are conflicting opinions on the purpose this rule is supposed to
serve. Some say it’s meant to prevent false accusations, so only applies to cases of explicit
objection (and not lack of explicit consent). Others, however, claim that the purpose of the rule is
simply to protect victims from undesired sexual advances, and includes acts they did not
explicitly consent to.
At a college party, John and Laura have sex. Laura did not explicitly object, but she did not
explicitly consent either. Next day, Laura tells her friends she did not consent to having sex with
John.
Prayer (liberal-underinclusive)
A private, non-denominational high school in a historically Christian European country has
bylaws stipulating that “The school shall uphold students’ and staff’s freedom of religion”. There
are conflicting opinions on the purpose this bylaw is supposed to serve. Some say it’s meant to
35

foster the expression of religious sentiment. Others, however, claim that the purpose of the bylaw
is to protect religious minorities.
Tom, a high-school coach, says the Lord’s Prayer after each practice, and some players join him.
The parents of a player claim the team might feel compelled to join the prayer, and the coach
should be suspended.
Pimping (liberal-underinclusive)
The Sex Crimes Ordinance stipulates: “Anyone deriving financial gain from the prostitution of
another shall be punished”. There are conflicting opinions on the purpose this rule is supposed to
serve. Some claim it is meant to limit the occurrence of prostitution, considered an inherently
immoral activity. Others claim that the purpose is to avert exploitation of sex workers by
organized crime and not to interefere with solo sex work.
Sharon is a solo sex worker. Her friend, Megan, has just lost her office job and is struggling to
pay the rent. Megan asked Sharon to help her find a temporary sex gig, until she finds another
permanent job. Reluctantly, Sharon agrees to put Megan in touch with some of her regular
clients but asks her to share 20% of the money she gets from those clients, in order to partially
compensate for lost income. Megan meets with three clients, has sex with them, and shares 20%
of earned money with Sharon. After that, however, Megan finds another office job and never
returns to sex work.
Guns (conservative-overinclusive)
The state law of East Dakota stipulates that “Only persons with a valid East Dakota firearm
permit may carry a firearm in East Dakota.” There are conflicting opinions about this rule’s
purpose. Some say that the rule’s purpose is to reduce the number of guns on the streets of East
Dakota. Others say that the rule’s purpose is to ensure that firearm carriers have passed a process
of certification.
36

Tom, a resident of East Dakota, gets a valid firearm permit from West Dakota. The East Dakota
and West Dakota firearm permitting processes are identical–and Tom passes West Dakota’s
certification process. However, Tom does not have a firearm permit from East Dakota. One day,
Tom carries a firearm in East Dakota.
Driving (conservative-overinclusive)
The law of East Dakota states that “On East Dakota roads, drivers may drive cars but may not
drive trucks.” There are conflicting opinions about this rule’s purpose. Some say that the rule’s
purpose is to combat climate change by reducing the number of high emission vehicles driven in
East Dakota. Others say that the rule’s purpose is to promote East Dakota small businesses,
since–at the time the law was passed–East Dakota had a very large number of car and sedan
producing companies, but no truck producers.
A few years later, a new truck producer opened in East Dakota. Pat bought a large truck from
that East Dakota producer and drove that East Dakota truck on an East Dakota road.
Jokes (conservative-overinclusive)
Acme Corporation’s Anti-Sexual Harassment Rules state that “Sex- or gender-based joking is
not permitted in the workplace”. There are conflicting opinions about this rule’s purpose. Some
say that the rule’s purpose is just to prevent unwanted sexual jokes directed at specific people.
Others claim that the rule’s purpose is to eliminate any kind of jokes on sex or gender, as many
people find those topics sensitive.
Josh works in a small all-male team in the Acme’s warehouse. He’s well liked among his
colleagues for his frequent off-color jokes. Yesterday, during a lunch break with his team, he told
a joke whose point was that many women are emotionally unstable.
Immigration (conservative-underinclusive)
37

The law of East Dakota states that “All non-citizens who immigrate to East Dakota must hold a
college-level degree.” There are conflicting opinions about this rule’s purpose. Some say that the
rule’s purpose is to decrease East Dakota’s supply of laborers who never completed a university
education. Others say the rule’s purpose is to encourage people to learn.
Tom is not a citizen of East Dakota, and he never attended college. Between ages 18-22 he
worked part-time. A friend of Tom’s, Dana, was the provost of a university. Dana knew Tom
read a lot in his free time, so Dana lobbied her university to grant Tom a university degree. In the
end, Tom was awarded a college-level degree. A few years later, Tom immigrated to East
Dakota.
Terrorist organization (conservative-underinclusive)
Figuria is a small European country. Figuria’s Immigration Code states: “No active or past
member of a listed terrorist organization is allowed to enter Figuria”. The list is updated annually
by the Minister of Security and includes extremist organizations from around the world,
including the Liberation Front. There are conflicting opinions about this rule’s purpose. Some
say that the rule’s only purpose is not to allow dangerous terrorists inside the country. Others say
the rule’s purpose is more general: to prevent extremists and radicalized people from migrating
to Figuria.
Talia has never been a member of the Liberation Front, but she has completed her education in a
school run by the organization and still sympathizes with some of its ideas. Talia wants to work
as a nurse in Figuria and has just crossed its border.
38

Appendix 2: Ideological Division in Purpose Attribution
To investigate whether the eight issues were politically divisive, we applied a coding
system in which issues were recoded such that higher values reflected more conservative attitudes
toward the case and its potential purposes. Conservative and liberal participants differed in their
rule violation and punishment judgments, both ps< .001. Conservatives and liberals also differed
in the preferences surrounding the purpose, that is, what the purpose of the statute should be, p <
.001. Finally, we checked whether participants identify the purpose-attribution preferences as
politically-polarizing by asking them which purpose would be preferred by a typical conservative
or liberal (all measures on a 7-point Likert scale). Participants differed in preferred purposes they
ascribed to a typical liberal vs. typical conservative (B = 2.22, z = 38.16, p < .001).
We replicated these effects in the main study: Participants’ party affiliation predicted both
their preferences surrounding the purpose, that is, what the purpose of the statute should be (𝜒2 =
75.06, p < .001), and their rule violation ascriptions (𝜒2 = 57.38, p < .001). In both contexts, we
observed predicted differences between Republicans and both Democrats and Independents, while
the difference between Democrats and Independents was observed only for rule violation but not
for purpose attribution. but not between Independents and Democrats.
39

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Legal interpretation as coordination

Piotr Bystranowski, Ivar Hannikainen & Kevin Tobia

Keywords: coordination, expertise, interpretation, purposivism, textualism

Acknowledgments: Guilherme Almeida, Bartosz Biskup, Vilius Dranseika, Tomasz Gizbert-Studnicki as

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Control Condition Coordination Condition

Textualist Purposivist Textualist Purposivist

C. Coordination Theory of Legal Interpretation

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III. The present research

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One possibility … is that individuals in diverse communities have a similar understanding

13 Hannikainen et al. (2022), p. 6.

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C. Participants and Procedure

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Figure 1. Study Protocol.

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Violation = a × Case-Type + b × Purpose-Preference + c

Violation = Condition × (Case-Type + Purpose-Preference)

1. Text persists as the focal point despite purpose accord

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Convergent evidence was found when dummy-coding experimental conditions according

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2. No improvements in coordination from information exchange

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3. Explicit deference to text over moral appraisal

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A. Why People Coordinate Around Text over Purpose

1. Evidence against the accord hypothesis

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2. A new hypothesis: Publicity

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B. Implications and Limitations

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Terrorist organization (conservative-underinclusive)

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