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University of Chicago Law Review

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211

Abstract

This Article considers whether courts should regard enmity between litigants as a transaction cost and thus as a justification for awarding damages when a property right would otherwise be available as a remedy. It begins by examining the phenomenon of enmity generally, and concludes that enmities can be both ethically justified and instrumentally useful depending on their origins. The normative status of enmity also depends on the consequences of how it is expressed. The law understandably tends to punish enmity when it motivates out-of-pocket expenditures to make someone else worse off, but generally not when it motivates the absorption of opportunity costs for that purpose. It is very difficult for courts to distinguish between "good" and "bad" enmities, however, and the Article argues that in most cases the best way for courts to cope with this uncertainty is to disregard enmity when fashioning remedies. Exceptions to the rule may be warranted in cases where particular enmities readily can be identified as offensive to public policy or where they will create significant costs for courts or innocent third parties. The Article defends these views against the claim that enmity is best understood as a variety of emotion that justifies damages remedies in cases where it is likely to be pervasive.

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