Jim...

Perhaps a licensing body. However, I would bet the ranch and the dog that licensing is very different from certification.

For example, practicing medicine without a license is a criminal offense. Driving without a license is a criminal offense. Practicing law without a license is a criminal offense.

Where is the commonality? The licensing body is almost always a state government. And in a civil action for a breach of contract - liability would not extend to a state. Again, imagine if every malpractice case could name a state licensing board as a defendant.

You used a term of art - negligent with respect to a certification process. Negligence is nothing more than a case where a duty of reasonable care is owed to some foreseeable plaintiff and that duty is breached. For liabilty to stick, there needs to be causation - both factual and legal. And, there must be damages. Otherwise, you have negligence in the air.

An example, everytime you, I, or anybody else drives over the speed limit - we are negligent. In those cases, our duty of reasonable care is driven by statute - the speed limit. Violate that statute, and it becomes an inference of negligence for the trier of fact (jury) to decide.

With respect to our current discussion, does a standards making body act in a negligent manner when they certify a person who in reality is not prepared? Very hard to say. What is thier duty of REASONABLE care. They administer an exam. Surely, a rep. from a standards making body cannot be over one's shoulder all the time - ensuring they are performing their work at an acceptable level.

The accounting profession does require - at least in PA - that you have 2 years of practice/real-world experience before you can go into practice for yourself. Still, in a malpractice case, I don't see a state accounting board getting hailed into court.

With respect to causation, could you say but for the certifying board not granting cert. on the developer - she/he would not have been your developer. Is it more likely than not? I think this is an easy one to argue in favor of the standards making body.

But assuming for a moment there was causation in fact (but for test) - is it fair to impose legal causation? As a matter of public policy, would we want to do this? Given that 80% of software projects fail, I would submit no.

So while there are damages, the issue of negligence and causation is debateable.

Jim, this is a great discussion. I think the issue of ripeness is at hand. Technology changes so much and so rapidly. It could be the whole thing is not ripe enough nor will it ever be ripe enough to be considered a profession - not that I think that is a big deal.

< jvp >