Deborah DeMott (Duke University School of Law), When Agentic AI Met the Common Law of Agency, Harvard Journal of Law & Technology (forthcoming) on SSRN. Here is the abstract:
The common law definition of an agency relationship does not plausibly apply to agentic AI. As a consequence, an agentic AI system lacks capacity to be an “agent” in a common law agency relationship with any person or entity deemed to be its “principal.” The system is an instrumentality created by its developer and deployed by its user, and not the common law agent of either. Moreover, even if agentic AI systems are deemed to be persons (a common law requisite for capacity to be an agent) the consequences under agency law could be startling. The consequences include charging the principal with notice of facts known to the agent when the facts are material to the agent’s duties to the principal. Nonetheless, and no less importantly, contemporary agency law encompasses robust doctrines of apparent authority and apparent agency. These doctrines ascribe legal consequences to creating the appearance that another person or instrumentality acts as one’s agent with authority to take actions on one’s behalf on which third parties may reasonably rely. Like their counterparts in civilian systems, doctrines of apparent agency and apparent authority apply even when an apparent agent (or an apparently authorized agent) acts beyond the scope of what’s been authorized. These well-established components of legal doctrine are implicated when agentic AI systems take actions that diverge from the scope of their instructions.
DeMott’s essay is the most doctrinally serious treatment of agentic AI and the common law of agency that has yet appeared. I have developed an extended engagement with its treatment of imputed knowledge—and the theory of cognitive states that doctrine presupposes—in Legal Theory Musings No. 8 on Legal Theory Stack.
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