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

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.