Much scholarship describes the development of tort law in terms of the judicial promotion of entrepreneurial endeavor by the creation of tort doctrine favorable to the railroads and industrialists. This Article takes issue with that description and, instead, posits that the development of tort doctrine can be seen as an ongoing attempt to punish conduct that violates certain values at the core of our moral intuition. Punishment is viewed, not as a means of accomplishing some other goal, but in the moralistic sense of retribution directed at the wrongdoer.

It goes on to argue that intuitive judgments as to whether conduct is socially acceptable or not are the product of the perceived utility of the conduct, whether the conduct is viewed as furthering or restricting freedom of choice, and the motive underlying the conduct.