ABSTRACT
How should the law respond to intentionally useless objects that are constructed from scarce materials and thrust into an overcrowded world? Approximately 60 million tons of electronic waste, or ‘e-waste’ – eg, discarded iPhones, refrigerators, desktop computers – is produced each year. This annual pile of electronic rubbish represents $62 billion worth of tangible raw materials (such as gold and other scarce metals) that has been rendered useless. In addition to wasting raw materials, e-waste clogs our landfills, poisons the ground water, and taxes our capacity to store it. Worst of all, much of this waste is intentionally created by electronics manufacturers through the profit-maximizing strategy of planned obsolescence.
Planned obsolescence is a strategy by which manufacturers intentionally limit the utility of their products so that consumers are forced to discard them and buy new products. Planned obsolescence creates intentionally useless objects and imposes significant social costs. While some of the costs of planned obsolescence are felt within the manufacturer-purchaser transaction (a purchaser must consider whether a product will last long enough to justify its price), the most significant social costs of the strategy remain external to that transaction.
This Article offers three principal contributions. First, a normative thesis: more of the social cost of intentionally useless objects should be borne by the manufacturers that profit from the strategy. Second, a theoretical insight: avoiding waste is a central commitment of property law. In fact, property law is rendered more coherent when it is understood as a series of instantiations of an anti-waste imperative. Often confused with an efficiency principle, property law’s anti-waste commitment best explains doctrinal choices that otherwise would seem inconsistent. Finally, a doctrinal analysis: the anti-waste imperative (when applied to the existing rules of property) disallows the conveyance of a fee simple in an intentionally useless object. Instead, manufacturers can only convey a defeasible interest in the object, retaining a reversionary interest that serves to correct some of the negative externalities associated with the strategy of planned obsolescence.
Render, Meredith, Waste, Property, and Useless Things (April 5, 2024). Harvard Law Review, Forthcoming.
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