The duty of care and the duty of loyalty are not new. What is new, in 2026, is a component of the duty of care that has come into being not through legislation but through the accumulated practice of regulators, the activism of certain plaintiffs' bars, and the ordinary expectations of large institutional shareholders.
The body of director liability law has elaborated the older duties across two centuries of corporate practice. The new component is a quieter arrival. It is being applied as if it were declared by statute, even though it is not. By the close of 2026, what is knowable about it is no longer adequate to a defense of inattention.
The New Component of Duty
The component may be stated as follows: the board has a duty of care with respect to the consequential decisions the corporation has delegated to autonomous or semi-autonomous machine agents, and the supervision of those decisions sits inside the board's fiduciary obligation, not outside it.
Directors who do not actively supervise the corporation's use of autonomous agents will find, within the next twenty-four months, that this passivity is itself the basis of a claim. The standard of care will not be that the directors prevented every failure; it will be that they instituted the supervision a reasonable director would have instituted, given what was knowable at the time.
What It Covers
The component covers four classes of decision. A board that has named them is meaningfully closer to compliance with the duty than a board that has not.
№ I — Decisions Affecting Customers or Counterparties. Any decision the corporation's machines make about pricing, credit, eligibility, account access, or termination — for customers, counterparties, or third parties acting on their behalf. The class includes both decisions made wholly by the machine and decisions made by the machine with human concurrence whose substance is determined by the machine's recommendation.
№ II — Decisions Affecting Employees or Candidates. Any decision the corporation's machines make about hiring, screening, evaluation, advancement, compensation, scheduling, or termination of employees. The class is the subject of active regulatory attention in the European Union, in California, and in jurisdictions whose protections are likely to expand. The board's duty does not depend on the regulatory floor in the corporation's headquarters jurisdiction.
№ III — Decisions Affecting Financial Reporting. Any decision the corporation's machines make that flows into the financial statements — the application of accounting estimates, the recognition of impairment, the classification of items, the construction of disclosure. The class is the subject of careful current attention by external auditors and will be the subject of new auditing standards within the eighteen-month horizon. The board's audit committee already bears a heightened obligation here.
№ IV — Decisions Affecting Safety and Material Risk. Any decision the corporation's machines make in the operation of a process, a system, or a physical asset whose failure would have material consequences for human safety, regulatory standing, or the financial condition of the corporation. The class is most acute in healthcare, transportation, and industrial operations, and it overlaps in important ways with the existing duties of the risk committee.
A board that has not asked management to map the corporation's current and planned machine agents to these four classes has, in the language of the brief, not begun. A board that has asked, and received an answer, has begun, and the rest of the duty proceeds from the answer.
What the Board Should Ask
The discharge of the duty proceeds through questions. The board does not need to construct the answers; it needs to insist that management has constructed them. The eight questions that follow are the ones a board with the duty in mind would ask of its senior executive officer at the next regularly scheduled meeting.
I. Inventory. What machine agents are operating, today, in the four classes of decision named above? What is the source of each — internally built, vendor-provided, or hybrid?
II. Authority. For each agent, what decisions has the corporation authorized it to make alone, what decisions require human concurrence, and what decisions has it been instructed not to make? Who, by name and title, signed the authorization?
III. Standard. For each consequential class of decision, what is the standard of judgment against which the agent's output is held? Who set the standard, when, and on whose review?
IV. Evaluation. How is the agent's performance against the standard measured, by whom, and at what cadence? Has the measurement been reviewed by the internal auditor? By an external party?
V. Audit. For a sample of the agent's consequential decisions in the last quarter, can the corporation reconstruct — for a regulator, a customer, or a litigant — what data was used, what logic was applied, what human concurred, and on what authority the decision was made?
VI. Exception handling. When the agent's output falls outside the standard, what process surfaces the exception, who is responsible for review, and at what cadence are exceptions escalated to the senior executive officer?
VII. Vendor concentration. What proportion of the corporation's consequential machine-decision capability sits inside a single vendor's product? What is the corporation's exposure to a change in the vendor's terms, pricing, or availability?
VIII. Reversal. For each class of decision, what is the corporation's plan to reverse a decision the agent made if the decision is challenged successfully? Has the plan been tested?
The board that receives crisp answers to the eight has fulfilled the foreseeable component of its duty. The board that does not receive crisp answers has identified the work that management owes the board before the next meeting.
What the Board Should Require of Management
Beyond the questions, the board should require four standing artifacts of management, refreshed at a cadence appropriate to the corporation's pace of adoption.
A policy. A short document, approved by the full board, that states the corporation's policy with respect to the use of autonomous and semi-autonomous machine agents. The policy names the four classes of decision, the authority model, and the audit standard. It is reviewed annually.
A register. A current inventory of machine agents operating in the four classes, maintained by the senior executive officer and presented to the audit committee or the risk committee on a quarterly basis. The register is to machine agents what the schedule of significant contracts is to commercial commitments — a working tool, not a one-time exercise.
A report. An annual report to the board, prepared by the corporation's internal audit function or by an external party with appropriate independence, on the operation of the corporation's machine agents during the year. The report addresses the eight questions above and any exceptions surfaced during the year.
A drill. Periodically, on a cadence to be set by the audit or risk committee, a tabletop exercise in which management demonstrates the corporation's ability to reconstruct a consequential decision made by the machine, to defend the decision in the presence of an interested external party, and to reverse the decision if required.
A Closing Observation About Director Liability
The current case law of director liability with respect to the corporation's use of artificial intelligence is sparse, and the cases that exist tend to settle. Directors who infer, from the sparse record, that the duty has not yet attached are misreading the moment. The duty has attached. What is sparse is the precedent.
The directors who, in the year ahead, document their supervision of the corporation's machine agents in the manner sketched above will be on the defensible side of the precedent when it forms. The directors who do not will discover, when the cases are tried, that the standard of care was always knowable, and that what was lacking was attention.
The first duty of a director is to be present. In 2026, presence means in the room when the machines decide.