Online | University of Richmond Law Review

The Emerging Virginia Constitution: Open Questions of Interpretation, and How Their Resolution May Impact Unenumerated Rights

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Although there is a Federal Constitution, of which we are all familiar, there are also 50 separately crafted state constitutions designed to respond to the unique circumstances of the territories they govern. These state constitutions contain analogues of our federal constitution, often including a bill of rights or other declaration of individual rights. Despite the distinctive history, nature, structure, and text of each state constitution, for decades if an individual invoked a claim involving a state constitutional right a state court would determine the scope of that state constitutional right in “lockstep” with federal Supreme Court. That approach has fractured.

Last December, the Constitution of Virginia reemerged into the spotlight after more than a century on the sidelines when the Supreme Court of Virginia announced in Vlaming v. West Point School Board that the Constitution of Virginia includes new and sweeping protections for religious freedom, exceeding the rights protected by the Federal Constitution. This decision is important not only for its outcome, but also for the novel questions it raises regarding interpretation of the Constitution of Virginia.

This article attempts to frame but a few of the questions now facing state supreme courts who have reached similar conclusions and then applies them specifically to Virginia, where the recent decision on religious liberties has left them ripe for development.

The Honorable Lisa M. Lorish *

Elizabeth Putfark **

* The Honorable Lisa M. Lorish is a Judge on the Virginia Court of Appeals. Thanks to
Tyler Demetriou, A.E. Dick Howard, Antonella Nicholas, Diane Philips, Lawrence Solum,
and Brian Warren for helpful comments and conversation. A special thanks as well to Connor Johnson, Jami-Reese Robertson and the other wonderful editors at the Richmond Law
Review for their diligent work on this piece. The views expressed in this article represent
strictly the personal views of the authors.

** Elizabeth Putfark is an associate attorney with the Southern Environmental Law
Center and former judicial extern to the Honorable Lisa M. Lorish.

Improving Law Reviews

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Legal academia’s system of utilizing student-run journals for publication has its downsides. Professors and students both have shared frustrations in the editing process. While editorial processes differ by journal, often there are issues with lack of mutual understanding in the scope of what should be edited, the role of the student in the editing process, and what level of deference should be provided to author discretion.

To remedy these downsides, this article proposes a framework which is borrowed from the world of appellate procedure, based on the proposition that the relationship between trial judges and appellate judges resembles the relationship between authors and student editors. Specifically, this article suggests that student editors should use standards of review, similar to those used by appellate judges when reviewing trial judges’ decisions, to guide their editorial decisions. Implementing additional tools—specifically, burdens of proof and reasoned explanations—could further improve the editorial process by guiding student editors to fewer but more helpful edits.

Dora W. Klein *

* Professor of Law, St. Mary’s University School of Law.

Preface

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The University of Richmond Law Review is proud to present its ninth annual issue of online scholarship. For the past nine years, the University of Richmond Law Review Online has been dedicated to publishing a diverse range of scholarly works in an exclusively digital format. This modern approach allows the Law Review to embrace greater flexibility and foster innovative contributions to legal discourse. Today, the expansive Online platform is read by lawyers, judges, students, and many others around the globe.

Mariah L. Riley *

* Online Editor, University of Richmond Law Review Vol. 58. J.D., 2024, University of Richmond School of Law.

Applying the Fair Use Doctrine in Music Copyright “Borrowing” Infringement Cases

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Copyright fair use is a broad, statutory doctrine that permits fair use of any type of copyrighted work. But the fair use defense is virtually nonexistent in copyright infringement cases involving musical compositions, such as the famous “Blurred Lines” case. Defendants and courts neglect to consider it for reasons unknown. One might conjecture that this simply reflects a tacit understanding in the music industry that original music should be untouched. In fact, musical borrowing is a longstanding and accepted tradition, which makes copyright fair use particularly amenable to musical compositions. Disconcertingly, ignoring fair use of musical compositions in infringement cases almost certainly means that courts have been generating erroneous outcomes for many years.

This Article overviews the tradition of musical borrowing, briefly surveys copyright infringement cases involving musical compositions, and considers how the fair use doctrine would apply in such cases. The objective is to compel defendant composers to raise the fair use defense in appropriate cases and, ultimately, help courts correct this glaring oversight in U.S. copyright jurisprudence.

Shea Bettwy *

* LL.M., University of Galway; J.D., University of California, Berkeley School of Law; B.A., University of Notre Dame.

Talking Scents: Copyrightability of Fragrance & Intellectual Property Protection in the Perfume Industry

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This Comment considers fragrance products’ eligibility for copyright protection and argues that U.S. copyright law, as it currently stands, is capable of being extended to protect perfume as a copyrightable creative expression in a way not yet addressed by the U.S. Copyright Office or federal courts. Further, this Comment will explore the necessity of having copyright protection expanded to fragrances in light of the current challenges facing the perfume industry.

Margaret M. Donnelly *

* J.D., 2024, University of Richmond School of Law; B.S., 2021, Duquesne University.

First Comes Love: Advocating for a Revival of Pre-Obergefell Estate Planning Vigor for LGBTQ+ Couples and Families

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On June 24, 2022, the Supreme Court of the United States handed down its decision in Dobbs v. Jackson Women’s Health Organization. Beyond the obvious devastation this opinion wreaked on abortion rights nationwide, it also unleashed a fear in communities that have gained substantive rights through the Court’s decisions based on similar reasoning. News organizations and LGBTQ+ advocacy groups quickly published stories discussing the fate of same-sex marriage in a post-Dobbs society. If the Supreme Court were to overturn Obergefell v. Hodges, it would be a crushing loss to the LGBTQ+ community. Not only would it signal the lack of respect for same-sex relationships in society, but it would deprive same-sex couples from the “constellation of benefits” marriage provides.

Kimberly N. Furtado*

* J.D. Candidate, 2024, University of Richmond School of Law.