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RE: licensing software engineers (was Re: [XP] IEEE SWEBOK Is Loo king for Reviewers--They Don't Even Mention XP, Agile, etc.)

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  • Steven Gordon
    The concerns you are raising are about the Standards to which a practicing software engineer can be held. Licensing not only has those very serious concerns,
    Message 1 of 6 , Jun 1, 2003
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      The concerns you are raising are about the Standards to which a practicing
      software engineer can be held.

      Licensing not only has those very serious concerns, but also the concern of
      how to properly verify whether a software engineer understands those
      standards well enough to be licensed.

      We all know how ridiculous the various certification tests in our field are
      today. Even if a reasonable set of standards could be written, licensing
      exams would end up testing memorization and preparation skills more than the
      understanding of software development.

      -----Original Message-----
      From: Cem Kaner [mailto:kaner@...]
      Sent: Sun 6/1/2003 2:45 PM
      To: extremeprogramming@yahoogroups.com
      Cc:
      Subject: Re: licensing software engineers (was Re: [XP] IEEE SWEBOK
      Is Looking for Reviewers--They Don't Even Mention XP, Agile, etc.)

      Let's check context --- IF we establish that software engineering is a
      licensable profession, THEN any company that makes life critical
      software would be foolish to not have a licensed software engineer
      signing off.

      That's a big IF.

      I happen to be a fan of professional licensing, and my sympathies are
      on the plaintiff's side of malpractice liability. WHEN there is
      malpractice, I like to see the malpractitioner get sued, disciplined,
      pay for it, and in the event of repeat malperformances, get summarily
      booted out of the profession. I'm not being sarcastic about this --
      personal accountability is important to me. I've even served as a
      full-time volunteer prosecutor in the Santa Clara County District
      Attorney's Office, putting my feelings about personal accountability
      into practice.

      I have two concerns about licensing software engineers:

      (a) Do we have a solid enough consensus in the field today to define
      the Standard of Care that a jury should evaluate a software engineer's
      performance against?

      (b) Is the set of materials (SWEBOK) that will be promoted as the
      statement of that Standard of Care a reasonable description of what I
      understand as good software engineering practice?

      Regarding (a), this is a vital issue because this is the basis both of
      licensing and of malpractice litigation. There has never been a
      successful suit for pure software engineering malpractice. (There have
      been successful software-related malpractice suits against accountants
      and other licensed professionals, but not yet against software
      engineers per se.) The reason that there has never been a successful
      suit is that the law does not yet recognize us as a profession. Only
      professionals can be sued for malpractice (professional negligence).

      If we convince politicians to declare software engineering a profession
      but don't have a sufficient consensus, then we create a litigation
      lottery. Dissatisfied clients will be able to sue for malpractice, but
      the jury will get essentially random guidance from the expert witnesses
      who testify at trial about appropriate engineering practice.

      In my view, this would be a disaster for the developing profession.
      Ultimately, standards of care WOULD be established. But they would be
      established in litigation. By judges, juries, lawyers and insurance
      companies.

      It is impossible to predict what standards would come out of a process
      like this.

      I look forward to a time when we do license software engineers. I think
      we'll appropriately hit that time about 20 years from now. Let's not
      make the mistake of rushing into it today.

      Regarding (b), SWEBOK reflects a collection of practices that have been
      successfully promoted to DoD and several other government agencies.
      They have credibility, they have a big fan club, there is a lot of
      money being made doing business with DoD (etc.) under these
      practices/standards, they are not going away any time soon. If our
      field adopts a Standard of Care in the next few years, it will look a
      lot like SWEBOK.

      I think SWEBOK promotes a set of practices that are sometimes
      appropriate, but in many contexts thay are as outrageously expensive as
      they are remarkably ineffective. The idea of adopting these as a
      standard of care for our profession, is, at least to me, abhorrent.

      -- cem kaner



      On Sunday, June 1, 2003, at 01:39 PM, Dan Rawsthorne wrote:

      > Cem Kaner said:
      >> I agree that a company that made
      >> life-critical software would be foolish to not have a licensed
      > engineer
      >> as overseer. But for commercial software -- unless there is a
      >> regulation or law that I am unaware of -- no such legal requirement
      >> exists.
      >
      > Cem is correct. Furthermore, life-critical software that is currently
      > being built *is* signed off on by a professional engineer. This
      > engineer
      > is often an EE who claims proficiency in software.
      >
      > Since there need to be professional engineers that sign off on
      > software,
      > I would prefer that they be software professionals, wouldn't you? They
      > would have a better chance of recognizing why agility works, or what
      > lessons patterns teach us, and so on.
      Cem Kaner, Professor, Department of Computer Sciences,
      Florida Institute of Technology, 150 West University Blvd.
      Melbourne, FL 32901.
      Senior author of
      Lessons Learned in Software Testing
      Testing Computer Software, and
      Bad Software: What to Do When Software Fails.


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    • Steven Gordon
      Without a license to practice law, I believe one could still legally do the following kinds of thing: 1. Represent yourself in court (but not other people). 2.
      Message 2 of 6 , Jun 2, 2003
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        Without a license to practice law, I believe one could still legally do the
        following kinds of thing:
        1. Represent yourself in court (but not other people).
        2. Write what would appear to be legal briefs, documents, contracts, etc.
        and freely distribute them on the net (but not sell them as having been
        prepared by a lawyer).
        3. Write a book or article about the practice of law.

        If a Software Engineering License ever happened, nobody would be able to
        stop you from writing code, only selling your services as a licensed
        software engineer. If the market reacted by not wanting to hire anybody but
        licensed software engineers, you might have trouble making a living, but you
        would still be able to write code and distribute it freely on the net. You
        would be able to still write whatever you want about software development
        techniques, methodologies, etc, and even include code in those books.

        Your free speech rights would never be violated, but you ability to earn a
        living could be threatened.




        -----Original Message-----
        From: Daniel Sheppard [mailto:daniels@...]
        Sent: Sun 6/1/2003 10:46 PM
        To: extremeprogramming@yahoogroups.com
        Cc:
        Subject: RE: licensing software engineers (was Re: [XP] IEEE SWEBOK
        Is Looking for Reviewers--They Don't Even Mention XP, Agile, etc.)

        > Writing software is an act of speech just as much as writing
        > a poem or
        > writing a newspaper article, and as such it MUST be afforded all the
        > same protections.
        >
        > Speech is NOT, as someone put it, simply "whatever the courts say it
        > is." Speech is human expression, and if the courts disagree, we need
        > to fix the courts, not simply sit by idly while our fundamental human
        > rights are trod upon. Remember, at least in the United States our
        > system is founded upon the fact that rights are inherent and our
        > government is there to protect them; rights by definition *cannot* be
        > "granted."

        Could not the same argument be raised that all that Laywers do in a
        courtroom is Speech, and therefore Laywer nothing should stop anybody from
        being a Laywer?

        (probably just unnecessarily stirring the pot, but I AM genuinely curious as
        to what makes a Software Engineer distinct from a Laywer).

        Daniel Sheppard
        http://freeroller.net/page/soxbox



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      • Keith Ray
        I remember that Nolo Press had lots of trouble with the way the legal system tries to prevent non-lawyers from filing
        Message 3 of 6 , Jun 2, 2003
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          I remember that Nolo Press <http://www.nolopress.com/history.cfm> had
          lots of trouble with the way the legal system tries to prevent
          non-lawyers from filing their own uncontested divorce papers, filling
          out other legal forms, using software to write wills, and so on. Nolo
          Press ended up being "outlawed" in the State of Texas. In most cases,
          it was not so much for the protection of other people as a way to
          prevent competition.

          On Monday, June 2, 2003, at 07:01 AM, Steven Gordon wrote:

          > Without a license to practice law, I believe one could still legally
          > do the
          > following kinds of thing:
          > 1. Represent yourself in court (but not other people).
          > 2. Write what would appear to be legal briefs, documents, contracts,
          > etc.
          > and freely distribute them on the net (but not sell them as having been
          > prepared by a lawyer).
          > 3. Write a book or article about the practice of law.
          >
          > If a Software Engineering License ever happened, nobody would be able
          > to
          > stop you from writing code, only selling your services as a licensed
          > software engineer. If the market reacted by not wanting to hire
          > anybody but
          > licensed software engineers, you might have trouble making a living,
          > but you
          > would still be able to write code and distribute it freely on the net.
          > You
          > would be able to still write whatever you want about software
          > development
          > techniques, methodologies, etc, and even include code in those books.
          >
          > Your free speech rights would never be violated, but you ability to
          > earn a
          > living could be threatened.
          >
          >
          >
          >
          > -----Original Message-----
          > From: Daniel Sheppard [mailto:daniels@...]
          > Sent: Sun 6/1/2003 10:46 PM
          > To: extremeprogramming@yahoogroups.com
          > Cc:
          > Subject: RE: licensing software engineers (was Re: [XP] IEEE SWEBOK
          > Is Looking for Reviewers--They Don't Even Mention XP, Agile, etc.)
          >
          >> Writing software is an act of speech just as much as writing
          >> a poem or
          >> writing a newspaper article, and as such it MUST be afforded all the
          >> same protections.
          >>
          >> Speech is NOT, as someone put it, simply "whatever the courts say it
          >> is." Speech is human expression, and if the courts disagree, we need
          >> to fix the courts, not simply sit by idly while our fundamental human
          >> rights are trod upon. Remember, at least in the United States our
          >> system is founded upon the fact that rights are inherent and our
          >> government is there to protect them; rights by definition *cannot* be
          >> "granted."
          >
          > Could not the same argument be raised that all that Laywers do in a
          > courtroom is Speech, and therefore Laywer nothing should stop anybody
          > from
          > being a Laywer?
          >
          > (probably just unnecessarily stirring the pot, but I AM genuinely
          > curious as
          > to what makes a Software Engineer distinct from a Laywer).
          >
          > Daniel Sheppard
          > http://freeroller.net/page/soxbox
          >
          >
          >
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          >
          >
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          >
          >
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          >
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          --
          C. Keith Ray
          <http://homepage.mac.com/keithray/blog/index.html>
          <http://homepage.mac.com/keithray/xpminifaq.html>
          <http://homepage.mac.com/keithray/resume.html>
        • Donald F. McLean
          As a Libertarian, I oppose government imposition of licensing requirements in any profession. Such requirements become the means whereby the established
          Message 4 of 6 , Jun 2, 2003
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            As a Libertarian, I oppose government imposition of licensing
            requirements in any profession. Such requirements become the means
            whereby the established members of a profession limit the number of
            practitioners partly for the purpose of enriching themselves at the
            expense of the public.

            Such requirements could also become a means whereby innovation in the
            field is stiffled - and this would be completely fatal to the still
            nascent field of software development.

            Donald McLean
            Speaking only for himself
          • Keith Ray
            I m out of date with respect to Nolo and Texas. Read about their victory here: http://www.nolopress.com/texas/index.cfm ... -- C. Keith Ray
            Message 5 of 6 , Jun 2, 2003
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              I'm out of date with respect to Nolo and Texas. Read about their
              victory here:

              http://www.nolopress.com/texas/index.cfm


              On Monday, June 2, 2003, at 07:15 AM, Keith Ray wrote:

              > I remember that Nolo Press <http://www.nolopress.com/history.cfm> had
              > lots of trouble with the way the legal system tries to prevent
              > non-lawyers from filing their own uncontested divorce papers, filling
              > out other legal forms, using software to write wills, and so on. Nolo
              > Press ended up being "outlawed" in the State of Texas. In most cases,
              > it was not so much for the protection of other people as a way to
              > prevent competition.
              >
              > On Monday, June 2, 2003, at 07:01 AM, Steven Gordon wrote:
              >
              >> Without a license to practice law, I believe one could still legally
              >> do the
              >> following kinds of thing:
              >> 1. Represent yourself in court (but not other people).
              >> 2. Write what would appear to be legal briefs, documents, contracts,
              >> etc.
              >> and freely distribute them on the net (but not sell them as having
              >> been
              >> prepared by a lawyer).
              >> 3. Write a book or article about the practice of law.
              >>
              >> If a Software Engineering License ever happened, nobody would be able
              >> to
              >> stop you from writing code, only selling your services as a licensed
              >> software engineer. If the market reacted by not wanting to hire
              >> anybody but
              >> licensed software engineers, you might have trouble making a living,
              >> but you
              >> would still be able to write code and distribute it freely on the net.
              >> You
              >> would be able to still write whatever you want about software
              >> development
              >> techniques, methodologies, etc, and even include code in those books.
              >>
              >> Your free speech rights would never be violated, but you ability to
              >> earn a
              >> living could be threatened.
              >>
              >>
              >>
              >>
              >> -----Original Message-----
              >> From: Daniel Sheppard [mailto:daniels@...]
              >> Sent: Sun 6/1/2003 10:46 PM
              >> To: extremeprogramming@yahoogroups.com
              >> Cc:
              >> Subject: RE: licensing software engineers (was Re: [XP] IEEE SWEBOK
              >> Is Looking for Reviewers--They Don't Even Mention XP, Agile, etc.)
              >>
              >>> Writing software is an act of speech just as much as writing
              >>> a poem or
              >>> writing a newspaper article, and as such it MUST be afforded all the
              >>> same protections.
              >>>
              >>> Speech is NOT, as someone put it, simply "whatever the courts say it
              >>> is." Speech is human expression, and if the courts disagree, we need
              >>> to fix the courts, not simply sit by idly while our fundamental human
              >>> rights are trod upon. Remember, at least in the United States our
              >>> system is founded upon the fact that rights are inherent and our
              >>> government is there to protect them; rights by definition *cannot* be
              >>> "granted."
              >>
              >> Could not the same argument be raised that all that Laywers do in a
              >> courtroom is Speech, and therefore Laywer nothing should stop anybody
              >> from
              >> being a Laywer?
              >>
              >> (probably just unnecessarily stirring the pot, but I AM genuinely
              >> curious as
              >> to what makes a Software Engineer distinct from a Laywer).
              >>
              >> Daniel Sheppard
              >> http://freeroller.net/page/soxbox
              >>
              >>
              >>
              >> ######################################################################
              >> #
              >> #####
              >> #########
              >> This email has been scanned by MailMarshal, an email content filter.
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              >> #
              >> #####
              >> #########
              >>
              >> To Post a message, send it to: extremeprogramming@...
              >>
              >> To Unsubscribe, send a blank message to:
              >> extremeprogramming-unsubscribe@...
              >>
              >> ad-free courtesy of objectmentor.com
              >>
              >> Your use of Yahoo! Groups is subject to
              >> http://docs.yahoo.com/info/terms/
              >>
              >>
              >>
              >>
              >> [Non-text portions of this message have been removed]
              >>
              >>
              >> To Post a message, send it to: extremeprogramming@...
              >>
              >> To Unsubscribe, send a blank message to:
              >> extremeprogramming-unsubscribe@...
              >>
              >> ad-free courtesy of objectmentor.com
              >>
              >> Your use of Yahoo! Groups is subject to
              >> http://docs.yahoo.com/info/terms/
              >>
              >>
              >>
              > --
              > C. Keith Ray
              > <http://homepage.mac.com/keithray/blog/index.html>
              > <http://homepage.mac.com/keithray/xpminifaq.html>
              > <http://homepage.mac.com/keithray/resume.html>
              >
              >
              > To Post a message, send it to: extremeprogramming@...
              >
              > To Unsubscribe, send a blank message to:
              > extremeprogramming-unsubscribe@...
              >
              > ad-free courtesy of objectmentor.com
              >
              > Your use of Yahoo! Groups is subject to
              > http://docs.yahoo.com/info/terms/
              >
              >
              >
              --
              C. Keith Ray
              <http://homepage.mac.com/keithray/blog/index.html>
              <http://homepage.mac.com/keithray/xpminifaq.html>
              <http://homepage.mac.com/keithray/resume.html>
            • Cem Kaner
              ... I generally supported Nolo in their suit, but they provided a good example of the positive issues that make lawyers concerned about non-lawyers offering
              Message 6 of 6 , Jun 2, 2003
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                On Monday, June 2, 2003, at 10:15 AM, Keith Ray wrote:

                > I remember that Nolo Press <http://www.nolopress.com/history.cfm> had
                > lots of trouble with the way the legal system tries to prevent
                > non-lawyers from filing their own uncontested divorce papers, filling
                > out other legal forms, using software to write wills, and so on. Nolo
                > Press ended up being "outlawed" in the State of Texas. In most cases,
                > it was not so much for the protection of other people as a way to
                > prevent competition.

                I generally supported Nolo in their suit, but they provided a good
                example of the positive issues that make lawyers concerned about
                non-lawyers offering legal advice.

                When I first became a lawyer, I volunteered to draft wills for people
                with AIDS. This was volunteer work (many lawyers do a lot of volunteer,
                no-charge, legal work) and I wanted to do it efficiently. I bought a
                copy of Nolo's WillMaker product to help me draft wills quickly. I was
                deeply concerned by the program. It asked me questions that worked well
                if I was drafting a no-complications will, but it didn't draw my
                attention (or ask me questions) to the issues that come up in
                there-are-some-complications situations. In the situations I was
                dealing with, I felt that the wills that WillMaker was designed to
                write would have severely disserved my clients.

                One of the critical problems in law is that it is easy to not spot
                legal issues in a situation. Law school exams are designed to humble
                students by presenting a fact pattern with two dozen legal issues (all
                packed into one question) and a demand "analyze this from the
                perspective of this person". The failing student, the C student, the B
                student and the A student all walked away from the questions feeling as
                though they had discovered all of the question's the issues. (The F
                student spotted all 6 of them, the C student spotted all 9 of them, and
                so on.) The issues you don't notice are the ones you don't provide for.

                The concern that I had about WillMaker, and that many lawyers of good
                faith have about other legal services by non-lawyers, was that a
                non-lawyer would not have recognized the absence of the issues that
                WillMaker didn't raise.

                Being able to spot and mitigate -- but especially to spot --
                non-obvious issues is a key aspect of what lawyers are paid for. That
                skill, some legal knowledge, and an enforceable code of legal ethics
                are what differentiates lawyers from non-lawyers.

                ===========

                The practice of law generally involves applying legal analysis to the
                client's specific factual situation. Writing generally about the law is
                not practicing law. Creating legal forms is not practicing law.

                Drafting contracts for another person, in return for compensation,
                seems the practice of law but a whole lot of nonlawyers can legally do
                this. I have not researched the boundaries on this.

                ===========

                There are several key differences between being a software engineer and
                being a lawyer.

                As a lawyer, I swore an oath of responsibility to the country, to my
                profession and my clients. I accepted jurisdiction over me of a body of
                laws not applicable to normal humans -- for example, as a California
                lawyer, I can be prosecuted (it is a misdemeanor-level crime) for not
                promptly returning a client's phone calls. I also accepted a variety of
                responsibilities as an Officer of the Court. In the bargain, I also
                accept important restrictions on my speech. As the most famous example,
                it is unlawful for me to divulge secrets told to me by one of my
                clients. Nondisclosure agreements can also protect a company's trade
                secrets, given to an engineer, but lawyer-client secrets are treated in
                law as much more secret (with greater penalties available for the
                lawyer) than company-to-engineer secrets.

                A different dimension of the difference between lawyers and software
                engineers is time. People have been doing lawyering for a long, long
                time. Many things that a lawyer could do would be identified by
                everyone in the field as malpractice. Other things would be identified
                by almost all lawyers as not malpractice even if they were turned out
                to be ineffective or counterproductive. There is a grey zone, but most
                lawyers know when they are pushing the edges. Many of the things that
                we think of as unethical for lawyers (subjecting them to suspension,
                fines of any size, or expulsion from the profession) or as incompetent
                are societally determined. In a different legal culture, the rules
                would not be the same. The rules that we have adopted built up over
                time, gained acceptance in the community, and are peacefully accepted,
                largely without controversy, by the individual members of the community
                as a condition of joining the profession. We are not anywhere close to
                that kind of consensus in computing today.

                As a lawyer, I had a clear idea of what could get me nailed for
                malpractice and I knew how to conservatively manage my small firm while
                advocating aggressively on behalf of my clients. My ideas about "my
                best work" did not conflict with my ideas about "avoiding malpractice
                risk."

                As a software engineering, my understanding is much more fuzzy. Many of
                my ideas about good practice have been called "hacking," "amateurish",
                "unprofessional" -- when I submitted my proposal for my book Testing
                Computer Software, the proposal reviewer retained by the publisher
                lamented that my book flew in the face of practices and attitudes he
                had spent a lifetime working to develop and that my book would sell
                well in red light districts (presumably because it, in his opinion)
                prostituted the field. Similar things have been said about XP by people
                who are recognized (for better or worse) as leaders of the software
                engineering field. In turn, I have some pretty harsh things to say
                about some of the more traditional guidance, including guidance found
                in leading software engineering textbooks.

                How can we possibly define malpractice in the face of this level of
                controversy?

                Accepting a license to practice a profession includes the acceptance of
                the public's right to sue you for malpractice if you work falls below
                the standard of care for that profession. Until we solve the
                what-would-constitute-malpractice-and-what-would-not problem, we should
                not be licensable.

                This difference is, I think, an essential one between engineers and
                lawyers.

                Give it a couple of decades and I think we'll advance past this problem
                and will have to consider the licensing question on other grounds. But
                for now, the malpractice problem, to me, seems fundamental.

                Cem Kaner, Professor, Department of Computer Sciences,
                Florida Institute of Technology, 150 West University Blvd.
                Melbourne, FL 32901.
                Senior author of
                Lessons Learned in Software Testing
                Testing Computer Software, and
                Bad Software: What to Do When Software Fails.
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