Of Wild Beasts and Digital Analogues: The Legal Status of Autonomous Systems

Abstract

The rise of artificial intelligence (A.I.) means that, for the first time in human history, legally significant decisions can be made by non-humans. This unique characteristic of A.I. has engendered debate and controversy on the issue of how the law should treat A.I. systems. One particularly hot topic in the emerging scholarship on the intersection of law and A.I is the concept of “artificial personhood.” The usual framing of this issue is: “should we grant ‘legal personhood’ to A.I. systems and give them legal recognition in the same way that the law recognizes corporations and natural persons?” In fact, several legal academics in the past few years have gone one step further, claiming that existing laws already permit the recognition of A.I. personhood, most notably through the creation of “Zero-Member” or “memberless” limited liability companies (LLCs) under New York law or the Revised Uniform Limited Liability Company Act (RULLCA). This paper attempts to answer three questions: (1) Do American LLC statutes provide a viable path to artificial personhood? (2) Is artificial personhood a good idea? And (3) if A.I. systems are not persons, what could serve as an analogue for the legal status of A.I. systems? This article answers the first two questions in the negative, concluding that courts would not construe LLC laws as permitting the creation of artificial persons, and positing that suggestions to the contrary are not merely wrongheaded, but potentially dangerous. In answering the third question, the article examines domesticated animals, wild animals, children, prisoners, and agents as potential legal analogues for digital persons. It concludes that the principles of agency law represent the most promising analogue for establishing workable legal standards for autonomous systems.

Keywords: Law, Artificial Intelligence, Legal Personhood, Emerging Technologies, Autonomous Systems, Robotics, LLCs, Limited Liability Companies, Zero-Member LLCs, Business Law, Agency Law

JEL Classification: K20, K40, O32, O38