Written by J.D. Larsen
What do artificial intelligence and an aardvark have in common? This question isn’t the beginning of a terrible joke; it raises a legal question about when something deserves legal personhood or rights. Legal personhood is “the status of being a subject of legal rights and duties, recognized by the legal system and capable of possessing and enforcing legal rights and of being the subject of legal duties.”[1]
Whether a non-human entity can have legal rights isn’t a novel issue. The 1819 Supreme Court case, Dartmouth College v. Woodward, first enshrined corporate personhood with constitutional protections. Nearly two centuries later, the controversial 2010 case of Citizens United v. FEC, granted corporations full constitutional free speech protections under the First Amendment.[2] The legal fiction of corporate personhood allows a company like Apple, Inc. to sue or be sued, object to violations of their constitutional rights, enter contracts, and be subject to the justice system.
The recent uptick in issues surrounding artificial intelligence have spurred a plethora of lawsuits. Using generative language models like Chat-GPT to write academic papers and using generative image creators like Novel.ai (often trained on copyrighted work) to produce content are examples of these suits. Without a proper legal framework, such as legal personhood and standing, there is often the legal question of who owns the resulting output.
If we extrapolate the framework created in corporate law to these emerging technologies, we have a temporary solution. This solution provides a basic framework for future legal questions of personhood. As of August 2022, there were seventeen states that had introduced bills or legislation that addressed AI issues generally. None of these bills, however, provided a complete framework for how to deal with the ever-increasing human like capacities of these systems in the future. They are instead patchwork attempts to solve current problems after they have happened.[3]
Animal law advocates for a basic framework of rights for non-human animals. It seems to be following a similar path to that of corporate personhood, with small personhood granted in limited circumstances in gradually increasing amounts. In 2021, for the first time ever, an Ohio court granted a group of hippopotami pseudo-personhood status.[4] While other courts have failed to find that any other animal has some form of legal personhood, it took nearly two centuries for corporate personhood to evolve to what it is today. This slow patchwork approach has pitfalls. If courts recognize the same personhood for animals as corporations, animals—more accurately entities on behalf of animals—could then sue in court for mistreatment. They could demand the same protections against inhumane treatment that human persons have. Like AI, or the slow and gradual rise of corporate personhood, this patchwork approach is leading to endless litigation and different holdings in different jurisdictions.
Even the legal personhood of human persons has undergone iterations and changes as moral judgment has evolved. When the U.S. Constitution was ratified in 1788, women and African Americans were not treated as full legal persons under the law.[5] It wasn’t until 2015 that the U.S. Supreme Court ruled that the marriage protections enjoyed by heterosexual partnerships were in fact guaranteed to all citizens regardless of sexuality.[6]
As the pace of technological advancement and the interconnectedness of people increases, so too does our pace of moral evolution. Our need to legislate an overall framework for addressing the questions of personhood and rights is necessary in the short term. Otherwise, the law will continue to fall behind the technology and morality available to society and people. We can look at the benefits and challenges of corporate personhood to inform our framework for other legal personhoods and can answer the legal question: “What is a person deserving of rights, protections, and duties?” If we answer that question, we will protect ourselves, our progeny (biological and artificial), our animal partners, and our future. If done right, we can start working in partnership with non-human persons instead of seeing them only as tools, property, or aberrations the way we have treated even other human persons in the not-so-distant past.
[1] Legal Personhood, Black’s Law Dictionary (11th ed. 2019).
[2] See Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518 (1819); Citizens United v. FEC, 558 U.S. 310 (2010).
[3] Legislation Related to Artificial Intelligence, National Conference of State Legislatures (Aug. 26, 2022), https://www.ncsl.org/technology-and-communication/legislation-related-to-artificial-intelligence (showcasing a plethora of AI laws that have both passed and failed and includes laws that only tangentially relate to AI).
[4] See Animals Recognized as Legal Persons for the First Time in U.S. Court, Animal Legal Defense Fund (Oct. 20, 2021), https://aldf.org/article/animals-recognized-as-legal-persons-for-the-first-time-in-u-s-court/ (describing a foreign case that the ALDF petitioned a U.S. Court in Ohio to grant permission under the statute to take depositions in the U.S., making history as the first U.S. court to grant any kind of legal personhood to animals).
[5] See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 949-53 (2002) (discussing women’s rights at the ratification of the U.S. Constitution’s and the evolution thereafter); Paul Finkelman, The Founders and Slavery: Little Ventured, Little Gained, 13 Yale J.L. & Human. 413, 415-18 (2001) (examining the legal status of African Americans in the U.S. Constitution and the approaches used by the framers to address these issues).
[6] Obergefell v. Hodges, 576 U.S. 644 (2015).
