I am simply delighted to be taking part in this symposium, and extend a great deal of thanks to Frank Pasquale, the editors at Concurring opinions—and of course, most important, Samir Chopra and Laurence White for writing such an excellent, thought-provoking piece of work. I enjoyed this book immensely and consider it required reading for anyone interested in thinking through how artificial agents can and should be regulated.
While there is much in this book that deserves greater analysis and discussion from the public, I have chosen to focus my thoughts on the last chapter, Personhood for Artificial Agents. This chapter, I think, is rightly described as the “legal culmination” of their analysis of artificial agents, and encapsulates some of the most pressing and interesting questions that the authors raise on how artificial agents have been modeled and adapted for the age of information.
The questions that they raise ultimately center, however, on whether artificial agents might be transformed by the legal extension of personhood, or, whether the legal theory of personhood might be transformed by the inclusion of artificial agents. On the former question, the authors embark on a fascinating discussion of the legal theory of personhood. They begin, for example, by surveying some of the historical and theoretical underpinnings of the idea of legal personhood—noting, for example, that the decision to consider artificial agents is “a matter of decision rather than discovery.” The authors strenuously argue, employing traditional approaches to personhood, that artificial agents deserve the fictive status of legal persons because it represents the logical outcome of their increased level of responsibility in this day and age.
Normally, as the authors (and the Restatement (Third) of Agency) point out, in characterizing an entity as a principal or an agent, it is necessary to be a person, to have the capacity to be the holder of legal rights and the object of legal duties. But there are exceptions to this general rule. Children and some adults are given the status of legal personhood even though they may lack central qualities that other legal persons possess. Moreover, Chopra and White point to the example of the business corporation, a variety of other government and quasi-government entities, temples, and even ships, which are treated as legal persons under admiralty law. Each of these categories can be construed as both legal persons, and yet still dependent on other legal persons to represent them.
“If legal systems can accord dependent legal personality to children, adults who are not of sound mind, ships, temples, and even idols,” the authors write, “there is nothing to prevent the legal system from according this form of legal personality to artificial agents.” In fact, the authors suggest, there may be significant benefits to doing so. One possible benefit might be the standardization of e-commerce transactions, or to facilitate the delegation of responsibility for automated decision-making in the context of administrative law. Chopra and White also point to potential benefits of agents managing simple trusts, to reduce administrative costs. The authors also suggest that by construing artificial agents as legal persons, they might be seen as data processors or data controllers, and not just tools or instrumentalities for the purposes of the EU Data Protection Directive.
But there is more. The authors also argue – in a fascinating discussion – for the potential recharacterization of artifical agents as independent legal personalities as well, suggesting that such agents possess some intellectual capacity, rationality, comprehension, sensitivity to legal obligations and punishment, ability to form contracts, to control money and own property, and to pay compensation to others. Although the authors admit there are strong philosophical objections to the idea of extending legal personhood, those objections fall short in the eyes of the authors. For them, artificial agents have some degrees of free will, in the sense that they can reason about the past and modify their behavior for the future. They also may potentially possess degrees of rationality, and even display some degree of morality, and consciousness (defined as the ability to summarize its actions in a unitary narrative), and use that narrative to determine its future behavior. In much of their discussion, the authors confidently suggest that technology has advanced to the point where these objections are more than just philosophical navel-gazing—they may instead be outdated, given the range of possibilities for future technologies.
I found this chapter particularly thought provoking, and it made me try to understand some of the significant pragmatic benefits to extending personhood to artificial agents. Here, it might be useful to consider the contemporary context, and whether there are other periods in time where the law has extended similar recognition to inanimate entities, and why.
Consider corporate personhood. One of the standard defenses, for example, for extending legal personhood to corporations (as I understand it) had to do with the economic conditions at the time, as well as the proclivities of the justices who crafted the doctrine. Some have argued that corporate personhood was created by a court that was interested in investing corporations with the formidable ability to challenge federal and state regulations. Another approach might suggest the exact opposite—that the theory was created to support the corporation’s role in integrating with those regulations. In any event, irrespective of which side one picks, it remains notable that the doctrine was created at the time that our American economy was in flux: corporations had become economically powerful, and yet the shareholders that owned them were not liable for any of the corporation’s misdeeds. Thus, one might argue that the doctrine was created to remedy some of these issues. Still another wrinkle is an approach, favored in more contemporary periods, that considers the corporation to be nothing more than a “nexus” of contracts between individuals, which affects today’s approaches to corporate personhood.
Yet, in each of these approaches and theories—all of which are covered exhaustively by the legal literature on the corporate form—we see a clear picture that justifies the extension of corporate personhood. The unavailability of a path of liability, for example, and the existence of powerful group dynamics might arguably justify the doctrine. But similarly powerful justifications are missing from Chopra and White’s eloquent formulation. It may be that personifying artificial agents might lead to more standardization or lower administrative costs, but one might need to see more discussion of why that is a more appropriate remedy than others that raise lesser philosophical objections.
A related issue that the chapter brings up for me involves a fundamental question of innovation: one might argue that the doctrine of corporate personhood is motivated by efficiency; and more efficiency may lead to greater investment in innovation and growth. But if we were to invest artificial agents with personality, and make them susceptible to all sorts of legal responsibilities and duties, would this hamper the very sort of innovation that gave them birth? Given Chopra and White’s impressive commitments to technology and social welfare, it may be an issue worth pondering.
Perhaps worth considering in a sequel?