ABSTRACT
Whether termed civil penalties or statutory multiplied damages, ‘supra-compensatory’ damages are of increasing theoretical and practical interest not only in the United States, but also abroad, notably in France and Australia. Notwithstanding criticisms directed at the controversial remedy of punitive damages and more generally at the notion of punishment within civil law, there is a growing recognition that some form of supra-compensatory remedy may be necessary to deter certain forms of conduct on the part of actors, especially corporations. The notion of supra-compensatory damages for societal deterrence purposes injects a public regulatory purpose into private law. This dimension is significant where there are third-party effects or externalized harms to others stemming from bilateral interactions between defendants and plaintiffs. Building on prior work, I explore various statutory and judicial mechanisms that could transform punitive damages into societal damages. I consider whether the case for conceptualizing punitive damages as a societal remedy is especially compelling in certain realms characterized by statutorily defined violations, such as in the consumer protection realm. Moreover, I explore how a reconceptualization of punitive damages as a societal remedy could have far-reaching effects both in terms of the evolution of US doctrine, but also influencing law reform efforts in various other countries.
Sharkey, Catherine M, Punitive Damages Transformed into Societal Damages (March 14, 2020) in Punishment and Private Law (Hart 2021).
First posted 2022-05-26 11:30:12
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