Volume 100, Number 1

Despite an increasing number of critiques from many commentators—abolitionists, social scientists, and fiscal conservatives among them—mass incarceration remains an ongoing crisis. Dealing with the wreckage of carceral overreach requires not just changing policies about what gets criminalized and how offenses are punished prospectively, but also unwinding the long sentences imposed during the past half- century and still being served. Among the mechanisms for decarcerating are second look acts, which a growing number of jurisdictions have passed or are considering.

Often these resentencing tools depend heavily on decisionmakers’ exercise of discretion. In rare instances, however, that discretion is constrained. Comparing two recent New York sentencing reforms, the Domestic Violence Survivors Justice Act and the 2004–2009 Drug Law Reform Acts—the former highly discretionary and the latter with a strong presumption in favor of resentencing—this Article notes the relative success rates of each statutory scheme, finding the less discretionary regime apparently more decarceratory. Critically, the exercise of discretion imposes a significant dignitary harm on applicants, who are required to prove their believability and moral worthiness to judges deciding whether to free them. As epistemic justice theory shows, those who are incarcerated and disproportionately members of marginalized identity groups face untenably difficult odds of doing so, as they are systematically discredited. In the process of inviting a judge to exercise discretion in their favor, these petitioners are often disbelieved, and the knowledge system is subsequently impoverished by discounting of petitioners’ experiences. Thus, if resentencings are going to begin to decarcerate at the rates necessary to bring the United States into line with comparable countries, and do minimal damage in the process, resentencing reforms should be categorical or presumptive rather than discretionary.

Intellectual property law has long been the law of creation, not creators. The dominant utilitarian framework (and alternate ones like Lockean and personhood justifications) consider the creator almost exclusively by reference to their creative outputs. These innovation-first, output-maximization frameworks have increased concentration among IP firms and deepened inequality in how IP’s economic rewards are distributed among creators. The existing frameworks simply do not have much to say about such pressing issues as authorial bargaining power, wage and economic inequality in the marketplace for creative works, and intensifying corporate concentration amongst dominant IP holders. Furthermore, the existing frameworks’ almost single-minded focus on outputs no longer holds up in the age of artificial intelligence, which renders creative output instantaneous and near-infinite—while threatening to reshape the landscape of creative labor as we know it.

This Article advocates for a new, alternate framework, one that highlights how IP, much like labor law, has long acted as an allocator of rights in property and capital between individuals and firms. If IP, in practice, has acted like labor law in facilitating the transfer of work from creative laborers to dominant IP firms, then IP theory, too, should do more than focus singularly on outputs—it should also address these input-based, supply-side harms. To the extent that there have been strains of more creator-focused theories throughout the IP doctrine and literature, they have, variously, argued for creation as either a solitary act of genius or collective, democratic meaning-making. This Article purposefully uses the word “labor” in opposition to such romanticized notions: It argues instead for a framework of creation as wage labor, as both the means by which large IP firms extract their value and also, potentially, as capital’s most potent resisting force.