Operational Agency: A Permeable Legal Fiction for Tracing Culpability in AI Systems

TL;DR

This paper proposes Operational Agency, a legal framework and causal mapping tool, to trace and assign culpability in AI systems without granting them legal personhood, enhancing accountability across various legal domains.

Contribution

It introduces Operational Agency and its graph-based analysis to evaluate AI's intent, foresight, and safety, strengthening legal doctrines for accountability without AI personhood.

Findings

Applied to five real-world cases across legal fields.

Demonstrated effectiveness in tracing culpability in autonomous systems.

Provides a principled evidentiary method for courts and legislators.

Abstract

Modern artificial intelligence (AI) systems act with a high degree of independence yet lack legal personhood-a paradox that fractures doctrines grounded in human-centric notions of mens rea and actus reus. This Article introduces Operational Agency (OA)-a permeable legal fiction structured as an ex post evidentiary framework-and Operational Agency Graph (OAG), a tool for mapping causal interactions among human actors, organizations, and AI systems. OA evaluates an AI's observable operational characteristics: its goal-directedness (as a proxy for intent), predictive processing (as a proxy for foresight), and safety architecture (as a proxy for a standard of care). OAG operationalizes that analysis by embedding these characteristics in a causal graph to trace and apportion culpability among developers, fine-tuners, deployers, and users. Drawing on corporate criminal liability, the innocent-agent doctrine, and secondary and vicarious liability frameworks, the Article shows how OA and OAG strengthen existing doctrines. Across five real-world case studies spanning tort, civil rights, constitutional law, and antitrust, it demonstrates how the framework addresses challenges ranging from autonomous vehicle collisions to algorithmic price-fixing, offering courts a principled evidentiary method-and legislatures and industry a conceptual foundation-to ensure human accountability keeps pace with technological autonomy, without conferring personhood on AI.