(The Act of) God’s Not Dead: Reforming the Act of God Defense in the Face of Anthropogenic Climate Change

Abstract

Natural phenomena like floods, droughts, and blizzards have a long history of causing damage. But these natural phenomena are now more frequent, intense, and therefore, foreseeable because of anthropogenic, or human-caused, climate change. Owing in part to the greater foreseeability of natural phenomena like weather, scholars believe the act of God defense—which excepts actors from liability when an unforeseeable and irresistible natural phenomenon is the proximate cause of damage—may be dead. Other scholars go further and argue the act of God defense should be dead, as corporate defendants can use it to evade liability even when their acts causally contribute to climate change. Despite the strength of these scholars’ arguments, those highlighting and even advocating for the demise of the act of God defense overlook the possibility that eliminating the defense will unfairly expose everyday people to liability. This Comment thus addresses scholars’ valid concerns with the act of God defense in light of climate change, examines arguments for why the defense should be excised from the law, and then argues that keeping but modifying the defense is the best way to address criticisms without unjustly harming everyday people.