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Software As a Profession

Choi, Bryan H., Software As a Profession (2019). Harvard Journal of Law & Technology, Vol. 33, 2020, Forthcoming. Available at SSRN: – “When software kills, what is the legal responsibility of the software engineer? Discussions of software liability have avoided assessing the duties of “reasonable care” of those who write software for a living. Instead, courts and legal commentators have sought out other workarounds—like immunity, strict liability, or cyber insurance—that avoid the need to unpack the complexities of the software development process. As software harms grow more severe and attract greater scrutiny, prominent voices have called for software developers to be held to heightened duties of “professional care”—like doctors or lawyers. Yet, courts have long rejected those claims, denying software developers the title of “professional.” This discord points to a larger confusion within tort theory regarding the proper role of “professional care” relative to “reasonable care.”

This Article offers a reconceptualized theory of malpractice law that treats the professional designation as a standard of deference, not a standard of heightened duty. This new theoretical framework rests not on the virtues of the practitioner, but on the hazards of the practice. Despite best efforts, doctors will lose patients; lawyers will lose trials. Accordingly, the propriety of the practitioner’s efforts cannot be judged fairly under an ordinary negligence standard, which generates too many occasions to second-guess the practitioner’s performance. Instead, the professional malpractice doctrine substitutes a customary care standard for the reasonable care standard, and thereby allows the profession to rely on its own code of conduct as the measure of legal responsibility…”

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