IBL Center Hellwege Speaker Series: Professor Bryan Choi, OSU
Bryan H. Choi, Ohio State University Asst. Professor of Law and Computer Science and Engineering, will present a talk entitled "Software as a Profession: Reconceptualizing Professional Malpractice Law."
When software kills, what is the legal responsibility of the software engineer? Discussions of software liability have studiously 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 presentation 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.
Software developers present a compelling case for inclusion under this new conception of professional duty. A close review of the history of safety-critical software certification standards reveals that the field has been unable to provide any safety guarantees, despite sustained efforts to do so. As a consequence, safety-critical software engineers are asked to build systems that confer great benefits on society, yet place lives at risk in ways that can be readily challenged as unreasonably safe. This experience with the most critical software systems helps illuminate why courts have hesitated to apply the “reasonable care” standard in the software context. Designating software developers as professionals provides courts a much-needed way to scrutinize the process of software development, not just the end product.