‘Punitive Damages as Societal Damages,’ by Catherine M. Sharkey
Catherine Sharkey’s “Punitive Damages as Societal Damages” addresses a tension that has been obvious for decades, but usually treated as an annoyance: punitive damages are justified in public-regarding terms—punishment, deterrence, and condemnation—yet delivered through private litigation and typically paid to a single plaintiff. The doctrinal rhetoric often tracks conduct broad in scope, such as systematic fraud, organizational bad faith, or product defects affecting many victims. The remedial structure, by contrast, remains stubbornly bilateral.
Sharkey treats that mismatch as a design problem, not a terminological one. Her proposal separates two functions long bundled together under the “punitive” label: (i) punishment, which she calls “anti-social penalties,” and (ii) compensation for social harms that ordinary compensatory damages do not reach, which she terms “societal damages.”
The point is not to deny punitive damages’ deterrent role. Rather, Sharkey argues that once we concede punitive awards often respond to harms beyond those suffered by the named plaintiff, courts should stop laundering that broader social objective through a plaintiff windfall.
Methodologically, the paper is both doctrinal and institutional. It reads constitutional punitive-damages doctrine as a constraint and then asks what remedial architectures—split recovery, compensation funds, or aggregation substitutes—might better align punitive damages with their asserted social function.