The usual instance of a latent ambiguity is one in which a writing refers to a particular personor thing and is thus apparently clear on its face, but upon application to external objects isfound to fit two or more of them equally”;Williston on Contracts, 3d ed., edited by Walter H.E. Jaeger (Mount Kisco, N.Y.: Baker, Voorhis, 1957), 627, 898.

29. See United States v. Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis-senting).

30. Related work has been done under the moniker the “New Judicial Minimalism.” SeeChristopher J. Peters and Neal Devins,“Alexander Bickel and the New Judicial Minimalism,” inThe Judiciary and American Democracy, Kenneth D.Ward and Cecilia R. Castillo, eds. (Albany:State University of New York Press, 2005).

31. See Bernard Williams, “The Relations of Philosophy to the Professions and PublicLife,” unpublished manuscript.

32. For a strong argument against a strong role for judicial review in matters such as this,see Orin Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths andthe Case for Caution,”Michigan Law Review 102 (March 2004): 801.

CHAPTER TEN

1. Harold Smith Reeves, “Property in Cyberspace,”University of Chicago Law Review 63(1996): 761.

2. This in the end was not his conclusion. He concluded instead, not that boundariesshould not be protected in cyberspace, but rather that the unconventional nature of cyber-space requires that boundaries be set along nontraditional context-specific lines. This conclu-sion, Reeves asserts, requires the law to understand both the environment of cyberspace andthe interests of those who transact in that space; see ibid., 799.

3. Cf. Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints onEnclosure of the Public Domain,”New York University Law Review 74 (1999): 354.

4. Maureen O’Rourke has extended the idea of the technological fences that cyberspacemight provide, describing techniques that websites, for example, might use to control, orblock, links from one site to another; see “Fencing Cyberspace: Drawing Borders in a VirtualWorld,”Minnesota Law Review 82 (1998): 610, 645–47. See, e.g.,Thrifty-Tel, Inc. v. Bezenek, 46Cal. App. 4th 1559 (Cal. Ct. App. 1996) (Trespass to chattel claim involving defendant’s chil-dren hacking plaintiff ’s confidential code to make long distance phone calls); Intel v. Hamidi,30 Cal. 4th 1342 (Cal. 2003) (Trespass to chattels claim involving Hamidi, a former employee,using Intel’s employee list-serve to send e-mails to employees); eBay v. Bidder’s Edge, 100 F.Supp. 2d 1058 (D. Cal. 2000) (eBay sought to prevent Bidder’s Edge, an Internet-based auctionaggregation site, from use of an automated query function without eBay’s authorization);Register.com v. Verio, 356 F. 3d 393 (2d. Cir. 2004) (Register.com sought to prevent Verio fromusing its trademark or online databases to solicit business from lists provided on theRegister.com website); America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 20645 (D.Va. 1998)(America Online alleged that IMS was sending unsolicited bulk e-mail advertisements to itsmembers in violation of the Lanham Act, 15 U.S.C.S 1125).

5. See, for example, Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copy-right in Books, Photocopies, and Computer Programs,”Harvard Law Review 84 (1970): 281.

6. There is a ferocious debate about whether these separate forms of regulation—copy-right, patent, and trademark—should be referred to together as “Intellectual Property.” Imyself have gone both ways on this question, but currently believe it is harmful not to referto these distinct bodies of law as “intellectual property.” Though of course these domains aredifferent, calling them by the same name doesn’t necessarily confuse (no one is confused

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