Tomorrow's legal challenges

More than seven centuries after the Magna Carta was signed the American legal system remains fundamentally intact. just in our lifetime it has withstood the challenges of social changes brought about by wars, civil disturbances, economic turmoil, political upheavals, and technological revolutions. Because it survived, we take for granted that it will continue surviving. We assume that whatever conflicts are going to arise as a result of future social and technological changes can and will be resolved by recognizable legal forms, principles, and procedures -- bearing a resemblance to law of the present.

This assumption may not be justified. Extraordinary future discoveries, inventions and applications of knowledge, and drastic social changes bombarding us even more frequently may prove too traumatic.

Which specific occurrences will transform our values and social institutions cannot be predicted with certainty, but there is no present lack of these potential social-change agents. Any number of them might alter the way in which we live. Candidates for this list are so familiar that they seem almost commonplace.For example, the discovery of extraterrestrial intelligences on distant galaxies is predicted with statistical certainty -- and for decades has been "rehearsed" in literature and film. The invention and commercial exploitation of self-sustaining biological "factories" has already begun. The industrial, scientific, and domestic use of artificially created new life-forms seems inevitable. Cloning of living (and, also, of late) human beings is now almost possible. "Natural" extra- uterine pregnancies are imminent. Cloned antibodies already exist in the lab that could prolong human life indefinitely.

We can readily imagine perhaps thousands of such changes and discoveries that could pose profound moral and legal questions. Still other such inventions and changes that have equal significance may not now be imaginable. These will all place heavy demands on our legal system to come up with new, faster, and more comprehensive decisionmaking forums as well as different types of conflict resolution than exist at present.

Can our already overextended system respond rationally and effectively to radical social changes and their corresponding demands for legal adaptations? These demands are likely to be of a greater order of magnitude than those with which the law now barely copes.

There is little reason to think that our system is, or will be, up to the task. In law schools and institutes of advanced study no effort seems underway to anticipate those different legal forums, approaches, and principles that will be needed in the face of perhaps cataclysmic social changes.

In one sense legal futurology seems almost a contradiction in terms. Lawyers and law professors are occupationally predisposed to look to the past for "new" ideas. The law's logic is overwhelmingly based on precedent and analogies with past cases. for example, when in the mid-'50s legal scholars began considering a jurisprudence of outer space, they turned to the ancient law of the high seas for their model.

There is yet another occupational hazard. lawyers are the supreme pragmatists, trained to act on problems of the here and now. We get paid to solve problems that are already problems. We view ourselves as the firemen of human affairs. The same is true for judges. Without a present controversy, courts refuse to consider to decide a case; it is then "moot" or "nonjusticiable."

By contrast, legal futurology calls for the players to accept as a genuine present task the search for solutions to possiblem problems -- those that have yet to materialize.

Consider an unfamiliar kind of conflict. The subject is a child soon to be born. the parties: the sperm donor, the egg donor, the uterine-host donor, the technician who has monitored the infant's gestation tank for 8 1/2 months, the customer who placed the original baby order but cannot afford the final payment, and the "embryo-farm" owner who wants to protect his investment by liquidating and selling to the highest bidder or, in the alternative, by immediately turning off the tank, so that he won't have to throw good money after bad.

Does the farm owner have a workman's lien on the infant? Does government have any legitimate interest in seizing the infant? Is this a case of possible murder? Or child neglect? or kidnapping? Is it just another custody battle? Or is it a simple breach-of-contract case? Who has the right to put up the newborn for adoption? If the conflict arose earlier, would abortion statutes apply?

These questions seem simple by comparison to others which the legal system will inevitably be called upon to answer. A revolution in legal education and research is needed if legal futurology is to be born.