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The paper assesses the imputation to the judiciary of economic reasoning in determining the standard of care in torts. The author argues that since the courts consider only the actual damage that occurred, they cannot be using, even implicitly, the economic concept of expected damage. In general judges do not use “risk” or “probability” to weight the level of damage but use the concepts nonmultiplicatively in a manner similar to that implied in Shackle's criteria for decision making in the absence of certainty. Shackle's theory attempts to be descriptive, and it may well fit the rule employed by Judge Learned Hand.
