John A. Lovett


While I do not deny that classic waste cases - conflicts between life tenants and future interest holders over alleged instances of voluntary waste - are less common today than they used to be (but perhaps not as uncommon as some might think), my goals in this article are to reawaken readers to the importance of waste doctrine, to suggest that the great days of waste may not be completely in the past, to recommend some new uses for waste cases as teaching tools, and generally to urge a renewed appreciation for waste - an appreciation that Dale Whitman, for one, never lost. Although I do not deny the urge to review all of the great moments in the development of waste doctrine, in this article I will focus only on what a few leading interpreters (legal academics and other law professionals) say about waste when they talk to each other and comment on two recent clusters of cases where waste doctrines and other closely related rules are currently at play. My primary but not exclusive focus is on voluntary or commissive waste cases because they tend to reveal the most difficult problems and the sharpest conflicts. In the end I hope to show not only that doctrines of waste still matter, but also that they matter especially in what I call "lanscapes of waste," that is, in settings in which some kind of dramatic, and relatively sudden physical, environmental or economic transformation has taken place. In other words, I claim that waste doctrine becomes particularly important in moments of radical change when patterns of land use and development are under intense pressure because the physical, environmental, social and economic circumstances affecting the underlying property relationship are changing dramatically. Put simply, we tend to think of waste doctrine as a relatively stable background principle in property law that lends certainty to property relationships and is susceptible to and generative of efficient private ordering. Yet I suggest that in moments of rapid and profound change courts and legislators not only confront difficult questions about waste, but are often tempted to abandon bright line versions of waste doctrine and muddy it in spasms of doctrinal transformation.

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