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Punitive damages have been around for centuries in classic
one-on-one tort actions and are here to stay. Mass torts, of
more recent origin, have matured to the point that this article
is comfortable referring to most of them as traditional.
Notwithstanding the legitimacy of both institutions when
employed separately, loud warning signals should sound
when, as with drinking and driving, they are combined.
Potentially destructive mixes of punitive damages and mass
torts have, unfortunately, been prevalent in traditional,fault-
based mass tort actions. The difficulties are mostly
administrative.Although punitive damages are conceptually
compatible with fault-based mass torts, courts administer
punitive awards in ways that are so capriciousas to generate
gross unfairness and inefficiency. If warning signals should
be loud in connection with punitive awards in traditional
mass torts, they should be downright deafening when courts
consider awarding them in what this article refers to as
emerging, nontraditional,enterprise-liability-basedforms of
mass tort.
Given that these serious difficulties cannot be eliminated
through marginal reforms, this article argues that punitive
damages are manifestly inappropriate in, and must be
eliminated from, all forms of mass tort. Of course, a broad
proscription requires courts to overrule precedent in
connection with traditional mass torts, and this article
explains how this could be accomplished. By contrast, such a
proscription would come early enough in the development of
emerging forms of mass tort to nip punitive awards in the bud
without the need to overrule longstandingprecedent. If courts

are going to eliminate punitive awards in mass torts, now is
the time for them to act.

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