On one hand, I don't disagree with the judge's reasoning. There hasn't been much evidence about the transmission rate.
On the other hand, while the transmission rate from outdoor dining may be very low (4% per posts in this thread), if that difference happens to be enough to push R0 above 1, or worse, cause a decrease in the number of available ICU beds, then allowing it could be a big mistake.
To put it another way, even if the evidence to close outdoor dining is weak, running an IRL experiment by leaving it open is very risky.
On the other hand, while the transmission rate from outdoor dining may be very low (4% per posts in this thread), if that difference happens to be enough to push R0 above 1, or worse, cause a decrease in the number of available ICU beds, then allowing it could be a big mistake.
To put it another way, even if the evidence to close outdoor dining is weak, running an IRL experiment by leaving it open is very risky.