Waste, Property, and Useless Things

^ Jonathan Stempel, Apple to Pay up to $500 Million to Settle U.S. Lawsuit over Slow iPhones, Westlaw J. Class Action, Mar. 17, 2020, https://www.westlaw.com/Document/Id82330aa62d211eaadfea82903531a62/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 [https://perma.cc/VQ83-F4G9].

^ See Aaron Perzanowski, Consumer Perceptions of the Right to Repair, 96 Ind. L.J. 361, 367 (2021) (“Many bought new devices rather than simply replace their phone’s battery. Apple’s throttling and the secrecy surrounding it steered consumers away from repair and toward replacement, inflating Apple’s bottom line in the process.” (footnote omitted) (citing Adi Robertson, Apple Agrees to $500 Million Settlement for Throttling Older iPhones, The Verge (Mar. 2, 2020, 12:01 PM), https://www.theverge.com/2020/3/2/21161271/apple-settlement-500-million-throttling-batterygate-class-action-lawsuit [https://perma.cc/U35V-MPDU])).

^ See Jeremy Bulow, An Economic Theory of Planned Obsolescence, 101 Q.J. Econ. 729, 729 (1986) (defining planned obsolescence as “the production of goods with uneconomically short useful lives so that customers will have to make repeat purchases”).

^ Shmuel I. Becher & Anne-Lise Sibony, Confronting Product Obsolescence, 27 Colum. J. Eur. L. 97, 101 (2021). There are at least five ways in which a product can be intentionally rendered obsolete, including: (1) planned obsolescence: the strategy by which companies strategize “for their product to become objectively useless after a certain period of time,” id.; (2) functional obsolescence: the practice of manufacturing products with lower quality components that are intended to fail or become outdated within a specific time frame, see id. at 102; (3) technological obsolescence: the phenomenon when advancements in technology make a functioning product undesirable, id. at 103; (4) postponement obsolescence: the decision by companies to only apply new features to their flagship devices, despite those features being compatible with existing devices, increasing consumer desire and waste, id. at 103–04; and (5) psychological obsolescence: the phenomenon where objects become subjectively undesirable due to marketing or other methods, id. at 104. For a history of planned obsolescence, see Kamila Pope, Understanding Planned Obsolescence: Unsustainability Through Production, Consumption and Waste Generation 9–42 (2017).

^ Perzanowski, supra note 2, at 367.

^ Joseph Guiltinan, Creative Destruction and Destructive Creations: Environmental Ethics and Planned Obsolescence, 89 J. Bus. Ethics (Special Issue) 19, 19 (2009) (“Today, the mounting numbers of functioning durable goods ending up in landfills have led to renewed criticism of product obsolescence.”).

^ See id. (“[T]he rapid pace of product upgrading ha[s] resulted in negative environmental consequences for consumers and society.”).

^ Faheem Gul Gilal et al., Consumer E‐Waste Disposal Behaviour: A Systematic Review and Research Agenda, 46 Int’l J. Consumer Stud. 1785, 1785 (2022) (describing commonly discarded e-waste).

^ Soaring E-Waste Affects the Health of Millions of Children, WHO Warns, World Health Org. (June 15, 2021), https://www.who.int/news/item/15-06-2021-soaring-e-waste-affects-the-health-of-millions-of-children-who-warns [https://perma.cc/AA3V-JECE] (“‘With mounting volumes of production and disposal, the world faces . . . a mounting “tsunami of e-waste,” putting lives and health at risk.’ . . . As many as 12.9 million women are working in the informal waste sector, which potentially exposes them to toxic e-waste and puts them and their unborn children at risk. . . . [C]hildren live, go to school and play near e-waste recycling centres where high levels of toxic chemicals . . . can damage their intellectual abilities.” (quoting Tedros Adhanom Ghebreyesus, Preface to World Health Org., Children and Digital Dumpsites: E-Waste Exposure and Child Health, at vi–vii (2021))); Richard Grant, E-Waste Challenges in Cape Town: Opportunity for the Green Economy?, Urbani Izziv, Feb. 2019, at 5, 5 (describing e-waste as producing toxic substances such as “cadmium, mercury, lead, brominated flame retardants, or polychlorinated biphenyls . . . [that] pose environmental health risks from inhalation of toxic fumes as well as from accumulations of chemicals in soil, water, and food, particularly in the vicinities of unregulated landfills”).

^ See Victoria Gill, Waste Electronics Will Weigh More than the Great Wall of China, BBC (Oct. 13, 2021), https://www.bbc.com/news/science-environment-58885143 [https://perma.cc/C3YL-4RHV]; Olivia Rosane, This Year’s E-Waste to Outweigh Great Wall of China, World Econ. F.: F. Institutional (Oct. 18, 2021), https://www.weforum.org/agenda/2021/10/2021-years-e-waste-outweigh-great-wall-of-china [https://perma.cc/9D6B-PMFN].

^ See Tamar Makov & Colin Fitzpatrick, Is Repairability Enough? Big Data Insights into Smartphone Obsolescence and Consumer Interest in Repair, J. Cleaner Prod., Sept. 1, 2021, art. 127561, at 1 (“[E]ach [smartphone] makes use of over 75 different elements of the periodic table, many of which have very low recycling and recovery rates, including a variety of precious, critical, and conflict materials.” (citation omitted)).

^ Gill, supra note 10 (“‘A tonne of discarded mobile phones is richer in gold than a tonne of gold ore,’ said Dr Ruediger Kuehr, director of the UN’s Sustainable Cycles (SCYCLE) programme.”).

^ Ankit et al., Electronic Waste and Their Leachates Impact on Human Health and Environment: Global Ecological Threat and Management, Env’t Tech. & Innovation, Nov. 2021, art. 102049, at 2 (“Although e-waste occupies only 2%–5% of the total solid volume, it contributes more than 70% in terms of toxicity. The toxicants such as lead (Pb), chromium (Cr)[,] beryllium (Be), palladium (Pd), gallium (Ga) etc. contaminate our food chain by mixing in air, water and soil. When ingested, they cause several adverse health effects on the human body. Besides the harmful metals e-waste [is] also associated with several chemical pollutants like phthalate, esters benzene, dioxins, polyaromatic hydrocarbons, polyvinyl chloride, etc. that are hazardous not only for the humans directly but also to the plant, soil and microbial species found in the nearby area.” (citations omitted)).

^ Seth Doane, The Tragic Cost of E-Waste and New Efforts to Recycle, CBS News (Nov. 26, 2023, 10:11 AM), https://www.cbsnews.com/news/the-tragic-cost-of-e-waste-and-new-efforts-to-recycle [https://perma.cc/LAT5-4698]. Of the 20% of electronic waste that is recycled “50%–80% [is] shipped to third world nations where workers use dangerous, primitive processes for extracting recyclable materials, often exposing themselves to toxic gases in the process.” Guiltinan, supra note 6, at 19.

^ See Guiltinan, supra note 6, at 19.

^ Pope, supra note 4, at 76 (“[E]lectronic waste contain[s] high levels of persistent biological toxins (PBTs), ranging from arsenic to antimony, cadmium, beryllium, lead, nickel and zinc. When electronic waste is burned anywhere in the world, dioxins, furans and other pollutants are released into the air and land, with potentially disastrous consequences for health around the globe. When electronic waste is burned in landfills, PBTs eventually leak into the groundwater, causing contamination.” (citation omitted)); see also Joanna Diane Caytas, Legal Aspects of Technology Assessment and Systems Analysis in Sustainable Urban Development, 14 Consilience 71, 83 (2015) (“As a result of planned obsolescence, shiploads of electronic waste . . . are carried from industrialized countries to the Third World, creating vast environmental problems with grave consequences.”). Planned obsolescence also imposes both economic and annoyance costs on consumers who have to expend time, energy, and money to replace objects that are designed to fail. As Giles Slade (quoting Lewis Mumford) puts it, “No one is better off for having furniture that goes to pieces in a few years.” Giles Slade, Made to Break 79 (2006) (quoting Lewis Mumford, Technics and Civilization 394 (1934)).

^ See Stijn van Ewijk & Julia Stegemann, An Introduction to Waste Management and Circular Economy 142 (2023) (“The cost of waste generation and management may not be reflected in prices — it is ‘external’ to the producer. For a long time, it was very cheap to landfill waste, despite the environmental impacts. When the price of landfill does not reflect its environmental cost, it is used excessively.”).

^ Indeed, Professor Jospeh Guiltinan asserts that planned obsolescence has become a necessary strategy for competing in a durable goods market. He observes “advances in manufacturing practice that yield faster product cycles are now a defining force in business strategy. . . . [T]he existence of a highly competitive environment, combined with the fundamental economic motives for obsolescence . . . have created a sort of path-dependence for product development strategies geared toward faster replacement of durables.” Guiltinan, supra note 6, at 21–22.

^ Press Release, United Nations Env’t Programme, UN Report: Time to Seize Opportunity, Tackle Challenge of E-Waste (Jan. 24, 2019), https://www.unep.org/news-and-stories/press-release/un-report-time-seize-opportunity-tackle-challenge-e-waste [https://perma.cc/LQ8L-F3BZ] (“Less than 20% of e-waste is formally recycled, with 80% either ending up in landfill or being informally recycled — much of it by hand in developing countries, exposing workers to hazardous and carcinogenic substances such as mercury, lead and cadmium. E-waste in landfill contaminates soil and groundwater, putting food supply systems and water sources at risk.”).

^ See generally Larry A. DiMatteo & Stefan Wrbka, Planned Obsolescence and Consumer Protection: The Unregulated Extended Warranty and Service Contract Industry, 28 Cornell J.L. & Pub. Pol’y 483 (2019).

^ One potential legislative approach would be to prohibit the practice directly as a form of consumer fraud, imposing a civil (or even criminal) penalty structure. France adopted this approach in 2016, defining planned obsolescence as “techniques by which the person who places a product on the market aims to deliberately reduce the lifespan of the product to increase its replacement rate.” Stefan Wrbka & Larry A. DiMatteo, Comparative Warranty Law: Case of Planned Obsolescence, 21 U. Pa. J. Bus. L. 907, 916 (2019) (quoting Code de la Consommation [Consumer Code] art. L441-2 (Fr.)).

^ Becher & Sibony, supra note 4, at 131–33 (“In 2013, the European Economic and Social Committee (EESC) was the first to link EPR with the fight against obsolescence, noting that ‘manufacturers should also cover the cost of recycling if their goods have an expected lifetime of less than five years.’” Id. at 132 (quoting European Economic and Social Committee Press Release CES/13/61, The EESC Calls for a Total Ban on Planned Obsolescence (Oct. 17, 2013))).

^ Id. at 127 (“[In] the United States, there has been little interest in regulating planned obsolescence.”).

^ For an explanation of the phrase “defeasible condition,” see infra note 28 and accompanying text.

^ A “fee simple” is the most robust package of ownership rights with respect to an object, in that it is generally an unlimited estate that could potentially “endure forever.” Jesse Dukeminier et al., Property 218 (8th ed. 2014).

^ See 1 Gerry W. Beyer & James M. Kosakow, Irrevocable Trusts § 3:4 (4th ed. 2023) (“[T]he interest of the person holding the fee simple absolute goes inward to the center of the earth and outward to infinity . . . .”).

^ See Guiltinan, supra note 6, at 20 (describing the practice of “death dating” and offering the example of portable radios, which carried a scheduled “death date” of three years after which time they would become intentionally useless objects); Slade, supra note 16, at 164.

^ A defeasible title, or a “defeasible estate,” is a more limited form of ownership than a fee simple in that a defeasible estate will end if a particular condition comes to pass. See 1 Restatement (First) of Prop. § 16 cmt. b, at 43 (Am. L. Inst. 1936). An example of a defeasible estate might be: “Blackacre to A, until A goes to prison.” This conveyance would create a type of defeasible estate known as a “fee simple determinable,” and “going to prison” is a defeasible condition that could trigger the end of A’s estate. See id. § 44, at 121. In this example, O (the original owner and grantor of this estate) has a “reversionary interest” in the estate. If A goes to prison, Blackacre will automatically return to O, and O will be the owner in fee simple again. “Reversionary interest” is a broad term that roughly describes an interest retained by O in a conveyance. 1 Restatement (Second) of Prop.: Donative Transfers § 1.4 cmt. c, at 49 (Am. L. Inst. 1983) (“A reversionary interest is what remains in a transferor who owns a vested interest and has made a transfer that does not exhaust the transferor’s interest in the property transferred, so that an interest in the transferred property may return to the transferor at some future date.”). Here, O’s “reversionary interest” is technically a “possibility of reverter.” See Dukeminier et al., supra note 25, at 296. Other reversionary interests that can be retained by O include a “reversion” and a “right of entry.” Id. For a discussion of defeasible estates and their corresponding future interests, see 1 Restatement (First) of Prop. § 16, at 43 (Am. L. Inst. 1936): “An estate in fee simple defeasible is an estate in fee simple which is subject to a special limitation (defined in § 23), a condition subsequent (defined in § 24), an executory limitation (defined in § 25) or a combination of such restrictions.”

^ This is both a descriptive point and a normative point. It describes an understanding of property law’s existing commitment to an antiwaste principle that disallows the destruction of property in the absence of use and enjoyment. See John Locke, Two Treatises of Government 249 (London, Awnsham Churchill 1690). Applying this preexisting commitment in the context of planned obsolescence compels this result. However, it is reasonable to also characterize this as a normative point: that the antiwaste principle should be recognized to extend to this context. Some scholars might question whether a defeasible interest can be created in personal property, given the restriction of numerus clausus. See, e.g., Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1, 17–18 (2000) (“A number of standard reference works state that personal property is subject to the same elaborate structure of forms that applies to estates in land (including future interests). Yet the case law does not fully support this broad proposition. It is reasonably well established that one can create a life estate in personal property. But there are few if any cases that address the question of whether more exotic interests, such as defeasible fees and executory interests, can be created in personal property.” (footnotes omitted)). However, in terms of the values that are supported by the rule of numerus clausus (for example, controlling complexity, lowering information costs, increasing certainty, and so forth, see id. at 8), there is little (if any) difference between the creation of a life estate in personal property (which is well established by case law) and a defeasible estate in personal property given that the defining characteristic in each estate is a future interest created in someone other than the present interest holder. In fact, a defeasible interest may serve to better control complexity, lower information costs, and increase certainty as compared to a life estate given that the termination date of a life estate is inherently unknowable, while a defeasible condition could potentially arise at a predictable point in time. Without a contrary directive from the courts, it is reasonable to assume that estates that exist in real property likewise exist in personal property. See Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 563 (2013) (“[I]n real and personal property the principal forms of ownership interest are the fee simple, fee simple defeasible, life estate, and leasehold.”); 96 C.J.S. Wills § 1355 (1936) (“A will may create a defeasible interest in personal property, meaning an interest subject to defeat by an executory bequest over on the happening of a future event or contingency.”).

^ For a discussion of the phrase “reversionary interest,” see supra note 28.

^ Technically, this conveyance is a fee simple determinable. The future interest that follows a fee simple determinable is a possibility of reverter. A possibility of reverter becomes immediately possessory when the triggering defeasible event occurs. See 14C Massachusetts Practice Series: Summary Of Basic Law § 14:15 (5th ed. 2023).

^ Functionally, this is similar to the extended producer responsibility model. See supra note 22 and accompanying text.

^ See infra Part II, pp. 1274–305.

^ See Tara K. Righetti & Joseph A. Schremmer, Waste and the Governance of Private and Public Property, 93 U. Colo. L. Rev. 609, 611–13 (2022) (identifying a waste principle in property law and noting that “[f]ew scholars have devoted careful attention to the details of the [waste] doctrine’s different manifestations,” id. at 612).

^ See Locke, supra note 29, at 249; Gordon Hull, Clearing the Rubbish: Locke, The Waste Proviso, and the Moral Justification of Intellectual Property, 23 Pub. Affs. Q. 67, 68–69 (2009) (claiming that Locke believed that “we are to strive for the optimal productive use of the resources given [to] us,” id. at 68).

^ Locke, supra note 29, at 249 (“But how far has he given it us, to enjoy? As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for Man to spoil or destroy.”).

^ See infra section II.A, pp. 1275–89.

^ Locke, supra note 29, at 249 (describing that ownership of property only goes as far as “one can make use of to any advantage of life before it spoils” and emphasizing that the right of ownership does not extend to the right “to spoil or destroy”).

^ The right to convey is itself an ownership interest (or the right of a fiduciary acting on behalf of an owner) such that we cannot convey what we do not own. 5 Restatement (Fourth) of Prop. § 4.3 cmt. a (Am . L. Inst., Tentative Draft No. 5, 2024) (“[T]he grantor who owns the property is usually also the person with the authority to convey. Yet the owner may not have the power to convey, or the power to convey an interest may be held by a different person than the owner or possessor.”).

^ See infra Part III, pp. 1305–15.