In this Article, I maintain that while there is an ongoing conflict of legal traditions over the desirability of fences in cyberspace, there are definite virtues in the creation of such fences, so long as we understand the physical, psychological, and moral dimensions of that process. Part I will present a brief survey of the history of barbed wire in the Old West, paying particular attention to the contending legal traditions that affected the manner and extent of that growth in the West. These contending legal traditions, which related to "fencing in" versus "fencing out" cattle, played a key role in the growth of barbed wire and ultimately in the growth and settlement of the Old West. Part II will then identify some of the similarities between that process and the continuing process of conflicting legal traditions in cyberspace. In particular, I will show that the concepts of "fencing in" and "fencing out" have continuing vitality and relevance in exploring the relationship of law and cyberspace. Finally, Part III will examine the extent to which those concepts have both historical and moral relevance in that exploration.
Jonathan J. Rusch, Cyberspace and the "Devil's Hatband", 24 SEATTLE U. L. REV. 577 (2000).