The law is based on precedent, therefore, lawyers tend to look at the past, rather than the future. We tend to try to reconcile contemporary issues with the past rather than to use the present to shape the future. As a result, there is little overall innovation in law firms. The status quo is favored over creativity. The past has always been more important than the future.
While predictability in the law and its enforcement is desirable in many respects, the lack of forward thinking has its consequences. One example of this is same sex marriage. Same sex marriage occurred relatively quickly over the past several years. While the new laws were both necessary and positive, the policy consequences were simply not considered and the law was not prepared for these changes. Lawmakers and courts have been predictably reactive. Adoption, paternity and custody are amongst the issues that the courts have been forced to address on an ad hoc basis because the legislatures were unable or unwilling to act.
The national and state bar associations must take the lead in helping to shape new laws for emerging legal issues. Bar associations need to make more of an effort to predict and address emerging issues rather than simply reacting to them. This is most important in the rapidly changing area of family law where the lack of foresight and “reactive laws” have an immediate and consequential impact on families, particularly children.