Volume 59 | University of Richmond Law Review

Examining the Implications of a Stricter Tacking Standard in the Aftermath of Bertini v. Apple

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Trademarks serve to indicate an item’s source of origin and distinguish it from other commodities in the market. When there are two or more entities with similar trademarks, who offer related goods or services, the entity to use the mark first has seniority over the other users. Furthermore, the senior user has priority, making him or her “entitled to enjoin other ‘junior’ users from using the mark, or one that is deceptively similar to it” in a way that is likely to confuse consumers. But under certain circumstances a trademark owner can claim priority over a mark by relying instead on “the first-use date of a similar, but technically distinct mark.” This is achieved through a concept known as tacking, which allows a trademark holder to modify or expand their existing mark by “tacking” the first use date of an earlier mark onto a revised mark.

This Comment examines the heightened stringency of the rarely applied tacking doctrine, exemplified by the United States Court of Appeals for the Federal Circuit’s (“Federal Circuit”) decision in Bertini v. Apple. The Bertini court addressed the proper approach when dealing with tacking in the context of differing goods or services, with the decision creating an additional obstacle for trademark holders seeking to successfully tack under these circumstances. Because of this decision, there is a potential for consumer confusion and an increase in trademark application filings, further contributing to the existing backlog at the United States Patent and Trademark Office (“USPTO”).

Catherine S. Condyles *

* J.D., 2025, University of Richmond School of Law; B.A., 2019, Randolph-Macon College. I want to extend my sincerest thanks to Professor Christopher Cotropia for his insightful suggestions and guidance throughout the writing process. I would also like to thank my University of Richmond Law Review colleagues, especially Hannah Nemanic, the lead editor on this Comment, and her editing team for all their hard work and dedication in preparing this Comment for publication. It has been a privilege working with all of you.

An Expert is Just Some Guy From Out of Town: Analyzing the Neoliberal Evolution of Expert Witness Testimony in Criminal Law

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Expert witness testimony plays an outsized role in American law. Called upon to explain medical or scientific terms to less knowledgeable peers, an expert can be a powerful tool, offering an authoritative perspective on specialized aspects of a case. The legal community grants experts this authority based on their alleged knowledge—within the legal sphere, science is “idealiz[ed],” and those with the “right” education or credentials are seen as more credible than those without. Despite this, legal professionals are known to “embrace expert evidence when it is misleading and unhelpful.” The expert witness tool, however, is too often denied to those it would benefit most—or worse, weaponized against them.

This Comment proceeds and analyzes the rise of neoliberalism in expert witness testimony in four parts. Part I provides a brief background on neoliberalism. Part II surveys the background and history of expert witness testimony in criminal cases. Part III discusses how expert witness testimony works in neoliberal ways, and how racial bias regularly disadvantages criminal defendants. Part IV reviews potential solutions for improving and reforming expert witness testimony. This Comment concludes by exploring how neoliberalism and implicit racial bias might continue in the work expert witnesses do in the courtroom.

Alyssa G. Harrison *

* J.D., 2025, University of Richmond School of Law; B.A., 2017, The College of William & Mary. I am grateful to the McNeill Law Society for the great honor of selecting this piece for first place. Thank you to Professor Luke Norris, who oversaw this Comment’s planning and several drafts—it has been a gift to be your student these past few years. Thank you to Gwendolyn J. Goodyear, the lead editor on this Comment, and the rest of the team on The University of Richmond Law Review. I am extremely grateful for your time and commitment to making this community the best that it can be. A final thanks to my family and Elaine Edwards—thank you for keeping me honest and keeping me kind.

We Need to Talk: Modernizing Attorney-Client Jail Communications

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Attorney-client jail phone calls, video calls, and emails are all routinely recorded and monitored by jails, with numerous examples of jails and private telecommunications providers giving those recordings and emails to law enforcement and prosecutors. This widespread failure to protect the confidentiality of attorney-client communications prevents lawyers from being able to enjoy easy, quick, and regular communications with their clients. In practice, and despite the ever-expanding communication methods in the outside world, those held in jails in this country while their criminal cases are pending are effectively stuck in the nineteenth century when the only way to communicate was in person or through a written letter. The pandemic brought new urgency to this problem as jails closed and in-person visits stopped. This left lawyers with snail mail as the only option to communicate confidentially with their clients.

This Article challenges current practices. As the pandemic highlighted, this is no longer a small problem to be looked at through the lens of individual lawsuits, cases, and motions. The failure to protect attorney-client confidential communications is a systemic problem demanding systemic solutions. Moreover, the problem remains serious and steadfast even as the pandemic continues to recede and fade away; the pandemic acted as a spotlight, helping to focus on this issue and recognize its severity. This Article concludes that the most direct path to meaningful change rests in criminal courts—the judges, the
administrators, and the clerks each recognizing that their failure to take meaningful action with telecommunication service providers—to protect the confidentiality of electronic attorney-client communication impacts not just their legitimacy, but also the efficiency of court operations.

Cynthia Alkon *

* Professor of Law, Director of the Criminal Law, Justice, & Policy Program, Texas A&M University School of Law. Thank you for the helpful comments and feedback from Jill Gross, Brendan Maher, Kelly Browe Olson, Andrea Kupfer Schneider, Peter Reilly, Nancy Welsh, Rachel Kincaid, David Kwok and the participants at the Texas Criminal Scholars 2023 Workshop and the Southeastern Association of Law Schools 2023 Conference, Discussion Group on Reforms, Restoration, and Resistance: Criminal Justice and Injustice. Thank you also to participants at the Experimental ADR II Conference, 2023, at the University of
Maryland Francis King Carey School of Law; the International Association for Conflict Management 2022 Conference; and to the faculty at Marquette University School of Law for giving comments and feedback on earlier works that included discussions on the topic of this Article. Thank you also to my research assistants, Kyle Chrisman, Dalia El-Giar, Maya Madden, Brandon Martin, and Hannah Singley.

The Impact of Diversity on the Bench for Employment Discrimination Cases

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As the number of nontraditional judges on the bench has increased, political scientists have studied their voting behaviors and presence on circuit court panels to determine if their presence made a difference in case outcomes. The results of these studies suggested there was no difference in case outcomes or inconsistent differences found across studies. While race and sex of the judge did not have an impact on voting behavior, the political party of the appointing president sometimes did. One area of the law stood out as the exception in these studies: employment discrimination cases.

This article engages several threads of research involving diversity in the federal courts, voting behaviors of judges, and employment discrimination law. First, it discusses the importance of diversity and recent demographic changes that are increasing diversity on the federal bench. Second, it recounts studies related to decision-making by nontraditional judges in employment discrimination cases and the impact of these judges on their white male counterparts on United States courts of appeals. Third, it describes the legal standards in these cases that make it possible for judges to have some latitude in decision-making; studies suggest that this has resulted in an anti-plaintiff bias among a significant number of federal judges with respect to employment discrimination cases. Finally, it links these lines of research to the current increased diversification of the federal bench, suggesting what it might mean for the outcomes of employment discrimination cases
going forward.

Theresa M. Beiner *

* Former Dean & Professor in Constitutional Law, University of Arkansas at Little Rock, William H. Bowen School of Law. Thank you to my co-panelists, Laura Moyer and Lisa Holmes, and discussant and panel chair Christine Harrington, at the 2022 annual conference of the Law & Society Association for helpful comments on an earlier draft of this article. Finally, I am grateful for the thoughtful comments of Sally Kenney and my colleague Terrence Cain.

Administrability Over Testamentary Freedom of Disposition

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Freedom of disposition is unquestionably accepted as the organizing principle of inheritance law in the United States. But what if we’ve been wrong about that this whole time? Or perhaps we haven’t been wrong exactly, but instead have been badly overstating things? Regardless of the answers, these are questions worth exploring. It’s time for a reckoning.

Kevin Bennardo *

* Clinical Professor of Law at the University of North Carolina School of Law and NonResident Associate Justice of the Supreme Court of the Republic of Palau. Thank you to Jillian Chen Johnson (UNC Law Class of 2025) for her assistance with researching sources for Part I.

Gen Y More Black Corporate Directors

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Corporate diversity has been in the spotlight for decades. Recent efforts have followed years of legal scholarship, arguments on the business rationale for greater diversity, and, more recently, the racial unrest during the summer of 2020. Called by some, a “racial reckoning,” the summer of 2020 catalyzed many corporate declarations on the importance of diversity, and more to the point of this article, the necessity of righting the economic disadvantages of Black Americans.

This article looks specifically at one intervention by a corporate player following summer 2020, Nasdaq’s volley to
increase corporate diversity through required disclosure. This article reviews the state of Black representation on corporate boards: its history, proffered challenges and barriers, and calls to increase Black representation. Following a description of Nasdaq’s efforts, this article argues that disclosure of board demographics will be a powerful tool for increasing the ranks of Black corporate directors because of an important constituency, Millennials.

The diversity, capital, social views, and ideas on corporate purpose shared by Millennials and their younger peers mean diversity disclosures can have material impact. This is important because diversifying the nation’s corporations can play a role in alleviating the centuries of economic exclusion meted out against Black Americans. This article is the first to connect the effectiveness of diversity disclosures on Black corporate representation with Millennials’ expanding investment activity. This confluence of factors makes Nasdaq’s disclosure rule an important model for others invested in diversity in the wake of recent U.S. Supreme Court jurisprudence.

Chaz D. Brooks *

* Assistant Professor of Law, American University Washington College of Law, LL.M, Georgetown University Law Center; J.D., Georgetown University Law Center; M.S. in Finance, University of Tampa, B.S., University of Tennessee. I thank Afra Afsharipour, Carliss Chapman, Mitch Crusto, Lisa Fairfax, Donald P. Harris, Julian Hill, Donald Langevoort, Alicia Plerhoples, Rima Sirota, Martin W. Sybblis, Robin West, and participants of the Georgetown Law Fellows’ Collaborative Workshop, John Mercer Langston Workshop, and the National Business Law Scholars Conference for their support and valuable comments on earlier drafts. Thanks also to Vincent Alfieri, DyTiesha Dunson, and Ayobami Omolana for excellent research support.