Suppose the courts set a precedent by interpreting ambiguous law in a way that negatively affects one of the parties of a case. When deciding on remedies, damages, or a criminal sentence, will courts sometime show any consideration for the losing party since they could not know how the law would be interpreted?

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    Rules for this will be different in different countries. Do you have a particular one in mind? The rules will also vary in different types of cases, particularly civil vs criminal. Did you have a type or area of law in mind? Jun 25, 2021 at 22:41
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    @DavidSiegel I don't have a jurisdiction or an area of the law in mind. It is a broad question. I can come up with ways to make the question more specific if it's required by the community. An answer that explains how (and why) it is different in different areas of law would be appreciated. For example, it appears that there is an "rule of lenity" in criminal law, but I wonder why there is no similar concept in civil cases where the government is a party.
    – Sid
    Jun 26, 2021 at 16:15
  • A broad question is fine. But when an asker needs or wants info for a particular jurisdiction, it is more likely to be given with precision when the jurisdiction is mentioned, It is fine indeed to ask for a comparison of the rules in different countries. Jun 26, 2021 at 16:21

1 Answer 1


This answer is under United States law.

Usually, when a court interprets the law in a way that was previously ambiguous, parties are not given any leniency for not knowing in advance how an issue will be resolved.

Sometimes, when a court overrules prior precedent with a new precedent the court will grant some leniency, if there is an easy way to do so.

For example, in the Colorado case of Warne v. Hall, 2016 CO 50, the Colorado Supreme Court made the level of detail required in documents commencing civil lawsuits in the state was made much more strict, reversing long standing prior binding precedents in the state on the issue. The U.S. Supreme Court had done the same thing in federal cases, but the Colorado Court of Appeals at the time had repeatedly declined to apply the federal standard to state court cases. In Warne, the party whose legal documents were held to be insufficiently detailed was allowed, on remand to the trial court for further proceedings, to try to amend those documents to meet the new standard (for what it is worth, he didn't succeed on remand).

This is usually not done, however, in "writing on the wall" situations where the new decision overruling prior law was obvious from an amendment to the statute that an older case interpreted, or from a previous new court precedent that overruled prior law in some circumstances and made it very likely that addition related binding case law would also be overruled, even if the previous landmark precedent didn't necessarily have that result.

An exception applies in cases where a law enforcement officer is accused of violating someone's civil rights. In those cases, liability is only imposed on the officer if the fact that the conduct violated the plaintiff's legal rights was "clearly established" by statutes and case law at the time that the law enforcement officer took the action giving rise to the lawsuit, under a doctrine known as "qualified immunity". If the law was ambiguous at the time that the law enforcement officer took action, "qualified immunity" bars the lawsuit.

Similar considerations apply in favor of the government in some habeas corpus litigation in federal court (where a state court conviction is collaterally attacked after direct appeals are exhausted).

  • isn’t there leniency for criminal ambiguity? I kind of remember as if there was in the U.S. or California
    – kisspuska
    Jun 26, 2021 at 1:23
  • @kisspuska I found this: en.wikipedia.org/wiki/Rule_of_lenity, but it does not seem clear how this principle is used in modern American jurisprudence (the Wikipedia page mentions Lockhart v. United States (2016), where the judges apparently did not follow this principle even though Scalia mentioned it as a concern).
    – Sid
    Jun 26, 2021 at 14:19
  • @Sid Yep, that's the word. I read it over now, and it does seem that some states codified this otherwise very much reasonable construction — Florida and Ohio, but it seems the Supreme Court narrowed or even overturned this in that case you cited.
    – kisspuska
    Jun 26, 2021 at 17:16
  • @Sid The rule of lenity is limited to criminal cases where there is an ambiguous criminal statute. It has not application in civil cases, and usually a court will rule that its interpretation is the plain reading of the statute.
    – ohwilleke
    Jun 28, 2021 at 23:52

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