Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law

Since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. This may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Among the more provocative contributors to this ongoing debate, Professor Steven Lubet recently reviewed our work advocating the ban against nonrefundable retainers and posed a number of questions about the per se prohibition against them. In this Article, we respond to Professor Lubet\u27s questions as well as to those posed by other scholars. In Part I, we discuss the client discharge right, the cornerstone upon which the absolute ban on nonrefundable retainers rests, and respond to a series of arguments concerning its meaning, how it may be impaired, and whether it may be waived. In Part II, we show that legitimate purposes that may be served by nonrefundable retainers cannot avoid impairing the client discharge right, but that other fee arrangements that do not impair that right can easily be designed to serve some of those ends. In Part III, we extend an invitation to address the issues we have identified to all those who believe that a per se ban against nonrefundable retainers is unnecessary to prevent the abuses they generate. We have previously extended this invitation to devise a less inclusive rule that would in a practical and self-effectuating way prohibit the abuses while permitting the attainment of legitimate purposes. Unfortunately for the debate, however, none of the participants have accepted this invitation. We therefore think it bears repeating

Measuring cerebral atrophy and white matter hyperintensity burden to predict the rate of cognitive decline in Alzheimer disease

Objective: To determine if baseline measurements of cerebral atrophy and severity of white matter hyperintensity (WMH) predict the rate of future cognitive decline in patients with Alzheimer disease (AD). Design: Data were drawn from the Predictors Study, a longitudinal study that enrolls patients with mild AD and reassesses them every 6 months with use of the Columbia modified Mini-Mental State (mMMS) examination (score range, 0-57). Magnetic resonance images were analyzed to determine the severity of WMH, using the Scheltens scale, and the degree of atrophy, using the bicaudate ratio. Generalized estimating equations were used to determine whether severity of baseline magnetic resonance image measurements and their interaction predicted the rate of mMMS score decline at subsequent visits. Setting: Three university-based AD centers in the United States. Participants: At baseline, 84 patients with AD from the Predictors Study received structural magnetic resonance imaging and were selected for analysis. They had a mean of 6 follow-up evaluations. Main Outcome Measure: The mMMS score. Results: Generalized estimating equation models demonstrated that the degree of baseline atrophy (β = −0.316; P = .04), the severity of WMH (β = −0.173; P = .03), and their interaction (β = −6.061; P = .02) predicted the rate of decline in mMMS scores. Conclusions: Both degree of cerebral atrophy and severity of WMH are associated with the rapidity of cognitive decline in AD. Atrophy and WMH may have a synergistic effect on future decline in AD, such that patients with a high degree of both have a particularly precipitous cognitive course. These findings lend further support to the hypothesis that cerebrovascular pathological abnormalities contribute to the clinical syndrome of AD

Higher BMI is associated with reduced brain volume in heart failure

Abstract Background Heart failure (HF) patients are at risk for structural brain changes due to cerebral hypoperfusion. Past work shows obesity is linked with reduced cerebral blood flow and associated with brain atrophy in healthy individuals, although its effects on the brain in HF are unclear. This study examined the association among body mass index (BMI), cerebral perfusion, and brain volume in HF patients. Results Eighty HF patients underwent transcranial Doppler sonography to quantify cerebral blood flow velocity of the middle cerebral artery (CBF-V of the MCA) and brain magnetic resonance imaging (MRI) to quantify total brain, total and subcortical gray matter, white matter volume, and white matter hyperintensities. Body mass index (BMI) operationalized weight status. Nearly 45% of HF patients exhibited a BMI consistent with obesity. Regression analyses adjusting for medical variables, demographic characteristics, and CBF-V of the MCA, showed increased BMI was associated with reduced white matter volume (p \u3c .05). BMI also interacted with cerebral perfusion to impact total gray matter volume, but this pattern did not emerge for any other MRI indices (p \u3c 0.05). Conclusions Our findings suggest increased BMI negatively affects brain volume in HF, and higher BMI interacts with cerebral perfusion to impact gray matter volume. The mechanisms for these findings remain unclear and likely involve multiple physiological processes. Prospective studies are needed to elucidate the exact pattern and rates of brain changes in obese HF persons

Reduced cerebral blood flow and white matter hyperintensities predict poor sleep in heart failure

Background: Poor sleep is common in heart failure (HF), though mechanisms of sleep difficulties are not well understood. Adverse brain changes among regions important for sleep have been demonstrated in patients with HF. Cerebral hypoperfusion, a correlate of sleep quality, is also prevalent in HF and a likely contributor to white matter hyperintensities (WMH). However, no study to date has examined the effects of cerebral blood flow, WMH, and brain volume on sleep quality in HF. Methods: Fifty-three HF patients completed the Pittsburgh Sleep Quality Index and underwent brain magnetic resonance imaging to quantify brain and WMH volume. Transcranial Doppler ultrasonography assessed cerebral blood flow velocity of the middle cerebral artery (CBF-V of the MCA). Results: 75.5% of HF patients reported impaired sleep. Regression analyses adjusting for medical and demographic factors showed decreased CBF-V of the MCA and greater WMH volume were associated with poor sleep quality. No such pattern emerged on total brain or regional volume indices. Conclusions: Decreased cerebral perfusion and greater WMH may contribute to sleep difficulties in HF. Future studies are needed to confirm these findings and clarify the effects of cerebral blood flow and WMH on sleep in healthy and patient samples

The Politics of Environmental Dispute Resolution

Also PCMA Working Paper #17.http://deepblue.lib.umich.edu/bitstream/2027.42/51148/1/380.pd

Milankovitch forcing and meridional moisture flux in the atmosphere : insight from a zonally averaged ocean–atmosphere model

Author Posting. © American Meteorological Society, 2010. This article is posted here by permission of American Meteorological Society for personal use, not for redistribution. The definitive version was published in Journal of Climate 23 (2010): 4841–4855, doi:10.1175/2010JCLI3273.1.A 1-Myr-long time-dependent solution of a zonally averaged ocean–atmosphere model subject to Milankovitch forcing is examined to gain insight into long-term changes in the planetary-scale meridional moisture flux in the atmosphere. The model components are a one-dimensional (latitudinal) atmospheric energy balance model with an active hydrological cycle and an ocean circulation model representing four basins (Atlantic, Indian, Pacific, and Southern Oceans). This study finds that the inclusion of an active hydrological cycle does not significantly modify the responses of annual-mean air and ocean temperatures to Milankovitch forcing found in previous integrations with a fixed hydrological cycle. Likewise, the meridional overturning circulation of the North Atlantic Ocean is not significantly affected by hydrological changes. Rather, it mainly responds to precessionally driven variations of ocean temperature in subsurface layers (between 70- and 500-m depth) of this basin. On the other hand, annual and zonal means of evaporation rate and meridional flux of moisture in the atmosphere respond notably to obliquity-driven changes in the meridional gradient of annual-mean insolation. Thus, when obliquity is decreased (increased), the meridional moisture flux in the atmosphere is intensified (weakened). This hydrological response is consistent with deuterium excess records from polar ice cores, which are characterized by dominant obliquity cycles.A. A. thanks the Global Environmental and Climate Change Centre of McGill University for a Network Grant that made possible an enriching twoweek stay at WHOI during June 2007. O. M. acknowledges support from theU.S.National Science Foundation. Support from a Canadian NSERC Discovery Grant awarded to L.A.M. is gratefully acknowledged

Time-dependent response of a zonally averaged ocean–atmosphere–sea ice model to Milankovitch forcing

Author Posting. © The Author(s), 2010. This is the author's version of the work. It is posted here by permission of Springer-Verlag for personal use, not for redistribution. The definitive version was published in Climate Dynamics 6 (2010): 763-779, doi:10.1007/s00382-010-0790-6.An ocean-atmosphere-sea ice model is developed to explore the time-dependent response of climate to Milankovitch forcing for the time interval 5-3 Myr BP. The ocean component is a zonally averaged model of the circulation in five basins (Arctic, Atlantic, Indian, Pacific, and Southern Oceans). The atmospheric component is a one-dimensional (latitudinal) energy balance model, and the sea-ice component is a thermodynamic model. Two numerical experiments are conducted. The first experiment does not include sea ice and the Arctic Ocean; the second experiment does. Results from the two experiments are used to investigate (i) the response of annual mean surface air and ocean temperatures to Milankovitch forcing, and (ii) the role of sea ice in this response. In both experiments, the response of air temperature is dominated by obliquity cycles at most latitudes. On the other hand, the response of ocean temperature varies with latitude and depth. Deep water formed between 45°N-65°N in the Atlantic Ocean mainly responds to precession. In contrast, deep water formed south of 60°S responds to obliquity when sea ice is not included. Sea ice acts as a time-integrator of summer insolation changes such that annual mean sea-ice conditions mainly respond to obliquity. Thus, in the presence of sea ice, air temperature changes over the sea ice are amplified, and temperature changes in deep water of southern origin are suppressed since water below sea ice is kept near the freezing point.This work was supported by an NSERC Discovery Grant awarded to L.A.M. We also thank GEC3 for a Network Grant