Judge Williams’ concurring opinion in Ali Shafi v. the Palestinian Authority, affirming the district court’s dismissal of the plaintiffs’ claims against the Palestinian Authority, is a long overdue attempt to create a new theoretical framework for the recognition of causes of action under Alien Tort Statute — or, more properly speaking, attempts to revive a very old one. His concurrence is an original attempt to link the ATS’ alleged origins in Blackstone’s Commentaries with the statute’s modern revival in Sosa v. Alvarez-Machain. Ultimately, it proposes a new standard all together for judges struggling to vigilantly police the ATS threshold: that the causes of action recognized under the ATS’s jurisdictional grant ought to be those which “protect and facilitate the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war.”
While I disagree with Judge Williams’ conclusion — that, in considering whether a plaintiff has stated a claim under the ATS, courts should look to “whether the defendant’s alleged behavior might provoke war if the United States occupied no more than an average position in global power rankings” — his concurrence attempts to inject some much needed ideological coherency into the federal courts’ constant invocations of the “Blackstone Three,” which, thanks to Sosa, are now an ubiquitous feature of modern ATS jurisprudence. Despite its prominent role in ATS litigation, however, most courts fail to understand the true significance of the Blackstone Three, and do not understand what unifies these three disparate norms of international law or why they have been chosen to be the paradigmatic causes of action under the ATS.