Software as a Profession

82 Pages Posted: 21 Oct 2019 Last revised: 26 May 2020

See all articles by Bryan H. Choi

Bryan H. Choi

Ohio State University (OSU) - Michael E. Moritz College of Law; Information Society Project, Yale Law School

Date Written: 2020

Abstract

When software kills, what is the legal responsibility of the software developer? Lawmakers have long avoided assigning duties of care to those who write software for a living. Instead, software developers have mainly been shielded from questions of software liability, because there is seemingly no good way to cross-examine the reasonableness of software development practices.

As frustration with bad code continues to build, some lawmakers have called for software developers to be held to heightened duties of professional care — by analogy to doctors or lawyers. Confusingly, courts have rejected such claims thus far, reasoning that software developers lack the traits of traditional professionals. To complicate matters further, critics complain that the professional standard of care protects professionals who practice lower standards of care.

This Article agrees that software developers should be held to a professional standard of care, but not because it sets higher or lower standards of care. Instead, this Article argues that the main function of the professional designation is to switch the tort duty from “reasonable care” to “customary care.” That switch is necessary where bad outcomes are endemic to the practice, those bad outcomes are caused by inherent uncertainties in the science of the profession, and the practice of the profession is socially vital even where outcomes are expected to be bad.

This Article explains why software development meets the conditions for professional designation, and posits that adopting a customary care standard would allow lawmakers to usher in greater enforcement of software liability, by holding software developers accountable for any software development practices deemed unacceptable by professional consensus.

Keywords: cyberlaw, software safety, software liability, professional malpractice, customary care, computer ethics, AI ethics, tort

Suggested Citation

Choi, Bryan H., Software as a Profession (2020). 33 Harvard Journal of Law & Technology 557-638 (2020), Ohio State Public Law Working Paper No. 513, Available at SSRN: https://ssrn.com/abstract=3467613

Bryan H. Choi (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520
United States

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