Time to change the laws then! Not an attorney but I’m sure that is what’s needed for us to find any sort of viable solution.
While I do agree with this, there's hundreds of years of precedent and inertia that needs to be overcome...
Changes that are happening now are what I would call "extra-legal" or agreements that have not been litigated or really challenged much yet. In light of what is already on the books I do think that any challenges would likely force reversion to what already exists (that doesn't work for our current situation).
What really does need to change is actual laws and that's a very tough thing to do.
This is a very good example for the history books though in that it really points at how if you make agreements with bad information and no means in the agreement to deal with those mistakes then you are stuck with a system which may not work well in the future when it is stressed or put into new circumstances.