David Sella-Villa (U South Carolina Joseph F. Rice Law) has posted “Regulating AI as a Person?” (34 Mich. St. Int’l L. Rev. (Forthcoming 2026)) on SSRN. Here is the abstract:
The world’s first AI Treaty sets out a bold agenda for AI regulation. The Council of Europe’s Framework Convention on Artificial Intelligence opened for signature in September 2024. It commits signatories, including the United States, to regulate AI in ways that promotes human rights, democracy, and the rule of law. Yet the treaty offers little specific guidance on implementation. This Article applies Professors Crootof and Ard’s Structuring Techlaw approach to the AI Treaty to illuminate options for regulating generative artificial intelligence (GenAI).
The analysis reveals that GenAI’s greatest source of legal uncertainty lies not in its data or hardware—which existing transnational legal regimes largely address—but in its algorithms. Unlike traditional regulatory targets, GenAI algorithms operate through probabilistic processes immune to the sanctions and incentives legal systems typically deploy. These algorithms process data throughout GenAI’s lifecycle, creating normative uncertainties about whether existing laws can accomplish their intended aims. The AI Treaty’s procedural requirements suggest a precautionary regulatory approach.
In developing new regulations consistent with the AI Treaty, the Structuring Techlaw approach suggests that policymakers look to an analogous legal regime. To match GenAI’s features and the AI Treaty’s goals, this regime must assess the provenance, capabilities, and potential impacts of its regulatory object; combine bright-line rules with case-by-case assessments; operate across multiple institutions and jurisdictions; and account for changing circumstances over time. Immigration law – or the regulation of people in new contexts – emerges as a powerful analogy for the regulation of GenAI. Immigration law could provide a foundation for understanding how signatories might implement lifecycle-based regulation that addresses algorithmic data processing’s unique challenges to human rights, democracy, and the rule of law.
