PropertyProf Blog

Death to Bike Share Programs

My quest to destroy Bikeshare programs is finally gaining some adherents.  Although I appreciate the anger in this video from the Wall Street Journal, I wish Ms. Rabinowitz had stayed away from sweeping generalization about "totalitarians" and gotten a little farther into the real policy issues of costs v. benefits. 

Steve Clowney

Prum & Kobayashi on the Geography of Green Building

Darren Prum (Florida State) & Tetsuo Kobayashi (Florida State - Geography) have posted Green Building Geography Across the United States: Does Governmental Incentives or Economic Growth Stimulate Construction? on SSRN.  Here's the abstract:

As green building activity continues to rise across the country, some state governments decided to create incentives that would motivate developers to voluntarily pursue third party certification for their real estate projects in order to assist in meeting sustainability and environmental goals. Despite the growing number of studies in green buildings, the geography of green buildings and sustainable construction only includes a few studies, which emphasize the lack of green building research from the spatial perspective and their relevance to public policies the lack of green building research from the spatial perspective and their relevance to public policies. This study analyses spatial distributions of certified green buildings in relation to governmental incentives deemed necessary to further environmentally friendly public policies that embrace sustainable construction practices while applying a regression analysis over time to determine the impact of such a course of action in relation to economic growth. This study focuses on each of the six states that applied tax incentives. The regression analysis between the number of certified green buildings and Gross Domestic Product in each state shows positive correlation between the two indicating an economic growth is a significant factor to explain the growth in green buildings.

Steve Clowney

An Update on the Private Property Rights Protection Act

Ilya Somin offers a brief update on the fate of the Private Property Rights Protection Act:

Last week, the House Judiciary Committee passed the Private Property Rights Protection Act, which would prevent local governments that engage in Kelo-style economic development takings from receiving federal economic development funds. As I explained in a post last year (which explains the bill in more detail), this legislation has been kicking around Congress since 2005. At various times, it has passed the House only to die in the Senate. If it finally passes both houses this time around, it will be a useful, though limited step towards disincentivizing abusive takings that transfer property to powerful private interests, often without actually producing the promised economic benefits for the region.

Why has the PRPA failed to pass for so long, despite overwhelming public opposition to Kelo-style takings? Various factors play a role. But a big one is political ignorance, of the same type that has led to enactment of many ineffective “reforms” at the state level. Most voters are unaware of the PRPA and don’t keep track of its legislative fortunes.Most voters are rationally ignorant and and devote only a very limited amount of time and effort to following political issues. Since the PRPA is not one of the top handful of issues on the political agenda, the public knows little about it and Congress can sit on it for years with little fear of punishment at the ballot box. Meanwhile, many local governments go on taking property for the benefit of private interest groups, while at the same time also collecting federal economic development funds. This is just one relatively small example of the broader problem of political ignorance discussed in my forthcoming book Democracy and Political Ignorance.

Steve Clowney

Map of the Day: The Atlas of True Names

The "Atlas of True Names" reveals the etymological roots, or original meanings, of the familiar terms on today’s maps.  For instance, where you would normally expect to see the Sahara indicated, the Atlas gives you “The Tawny One”, derived from Arabis word es-sahra, meaning “the fawn coloured."

Steve Clowney

(HT: Joseph Blocher)

Freyfogle on Aldo Leopold

Eric Freyfogle (Illinois) has posted Leopold's Last Talk (Wash. J. Envtl. L. & P.) on SSRN.  Here's the abstract:

During the last decade of his life, Aldo Leopold (1887-1948) delivered more than 100 conservation talks to various popular, professional, and student audiences. In them, he set forth plainly the central elements of his conservation thought. By studying the extensive archival records of these talks one sees clearly the core elements of Leopold’s mature thinking, which centered not on specific land-use practices (good or bad), but instead on what he saw as deep flaws in American culture. Leopold’s sharp cultural criticism — more clear in these talks than in his lyrical, muted classic, A Sand County Almanac — called into question not just liberal individualism but central elements of Enlightenment-era thought. This essay distills the messages that Leopold repeatedly presented during his final years. It clarifies the messages by situating Leopold’s thought within long-running philosophic discussions on the nature of life, the limits on human knowledge, standards of truth, and the origins of value. For Leopold, conservation could succeed only if it challenged prevailing cultural understandings and pressed for specific, radical change. The now-stymied environmental movement has never taken that advice to heart.

Steve Clowney

How to Steal

Slate puts together a short anthology of the best magazine pieces about audacious heists.  The stories feature tales of diamond thieves, a skyjacking, and the theft of the Mona Lisa.

Steve Clowney

Is "Happy Birthday To You" in the Public Domain?

A new law suit aims to find out:

A filmmaker is suing to make the song "Happy Birthday to You" free for everyone to use.  The plaintiff, Good Morning to You Productions Corp., a New York-based company that is making a documentary about the song, said it belongs in the public domain.  Warner/Chappell Music Inc., the publishing arm of Warner Music Group, owns "Happy Birthday to You," meaning it has exclusive rights over the song's reproduction, distribution and public performances. 

According to Good Morning to You's class-action lawsuit, filed in New York, the company had to pay Warner $1,500 for a license to use the song.  As the 26-page court document notes, the song has a history dating back 120 years.   The tune's origins go back to the 1893 song "Good Morning to All" by sisters Mildred J. Hill and Patty Smith Hill.  The lyrics were: "Good morning to you / Good morning to you / Good morning dear children / Good morning to all."    That song eventually evolved into "Happy Birthday."   The suit aims to return "millions of dollars" in licensing fees from Warner to thousand of people and groups that have paid the company to use the song.

Mike Masnick's blog has a good summary of the issues and an embedded copy of the plaintiff's brief:

The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of "Good Morning to You," but also notes that the "happy birthday" lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called "happy birthday to you." They also point to a 1907 book that uses a similar structure for a song called "good-bye to you" which also notes that you can sing "happy birthday to you" using the same music. In 1911, the full "lyrics" to Happy Birthday to You were published, with a notation that it's "sung to the same tune as 'Good Morning.'" There's much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

Steve Clowney

Schindler on Banning Lawns

Sarah Schindler (Maine) has posted Banning Lawns (George Washington Law Review) on SSRN.  Here's the abstract:

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.

Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.

In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

Steve Clowney

Supreme Court Decides Water Law Case

From SCOTUSblog:

This morning Justice Sotomayor delivered the opinion for a unanimous Court in Tarrant Regional Water District v. Herrmann. The petitioner in this case, a Texas state agency responsible for providing water to north-central Texas, sought a water resource permit from the Oklahoma Water Resource Board (the respondents) to take water from a tributary of the Red River at a point in Oklahoma’s portion of the basin. Knowing that the permit request would likely be denied, Tarrant filed a suit seeking to enjoin the OWRB’s enforcement of state water laws under which water exports are barred, arguing that the statute is pre-empted by the federal Red River Compact or invalid under the Commerce Clause.  The Court held that the Red River Compact, which allocates water rights within the Red River basin among the states of Oklahoma, Texas, Arkansas, and Louisiana, does not pre-empt the Oklahoma water statutes.  The case is significant for the pace of economic development in the Dallas-Fort Worth region, and for the right of Oklahoma to control the use of water in rivers that traverse the state.

Steve Clowney

Map of the Day: Breweries in the USA

An interactive map from the New Yorker.

 

Steve Clowney

Hamill on Common Property in Canada

Sarah Hamill (Alberta) has posted Private Rights to Common Property: The Evolution of Common Property in Canada (McGill) on SSRN.  Here's the abstract:

This article uses the recent Occupy litigation of Batty v. City of Toronto to argue that Canadian courts no longer have a robust understanding of common property and its attendant rights. The lack of judicial understanding of common property is hardly surprising given property theory’s focus on private proper-ty, particularly individual private property. This article argues that rather than use the traditional analogy of governments holding common property in trust for the public, Batty relies on an analogy of common property which treats the government as an owner. The emergence of the latter understanding of common property can be traced to Supreme Court jurisprudence from the early 1990s.Although the government-as-owner analogy of common property was introduced in a concurring judgment, more recent Supreme Court decisions have since reiterated the analogy. Such an understanding of common property is a clear attempt to force all property into a private property model and emphasize the rights of owners above all other rights in property. This article argues that the government-as-owner analogy is problematic given its emphasis on the government’s use of property rather than the public’s benefit from common property and calls for a return to the trust analogy of common property.

Steve Clowney

The World's Largest Treehouse

Slate points us toward a giantly cool treehouse in Crossville, Tennessee:

According to Slate:

As Minister Horace Burgess tells the story, in 1993, the Minister was praying when God told him, “If you build a tree house, I’ll see that you never run out of material.” Inspired by this vision, the quiet Minister set out to build the largest treehouse in the world. Located just outside of Crossville, Tennessee, the 97-foot-tall tree house and church is supported by a still-living 80-foot-tall white oak tree with a 12-foot diameter base,  and relies on six other oak trees for support.

For fourteen years, Minister Burgess has been adding to the tree house, spending $12,000 to build it. Over that time, the treehouse has grown to truly monumental proportions, and the Minister may have already achieved his goal of building the world's largest treehouse. Currently, his treehouse is 90 feet tall, with five stories containing 80 rooms, and is complete with a church and a bell tower. The bell tower at the top of the treehouse is equipped with oxygen acetylene bottles that, repurposed as bells, chime daily.

Steve Clowney

Colinvaux on Charitable Contributions of Property

Roger Colinvaux (Columbus) has posted Charitable Contributions of Property: A Broken System Reimagined (Harvard J. on Legislation) on SSRN.  Here's the abstract:

On average, nearly $46 billion of property is given to charitable organizations each year, about twenty-five percent of the total charitable deduction. This makes the charitable contribution deduction for property a tax expenditure within a tax expenditure, yet it is rarely analyzed as such. It emerged as part of a noble effort to encourage contributions to worthy organizations. But the deduction for property has never worked well. The general rule allowing a deduction based on the fair market value of the property may have some intuitive appeal, but its implementation has yielded numerous exceptions and immense complexity. The Article argues that the extensive historical effort to allow a deduction for property contributions is a failure. Given the substantial direct and indirect costs involved, the uncertain benefit to the donee from property contributions,
and the absence of any affirmative policy to favor property contributions as such, it is time to reverse the general rule and not allow a charitable deduction for property contributions. Reversing the general rule would provide many benefits — increased revenue, improved tax administration, fewer abusive transactions, a simpler and more equitable tax code, and a preference for cash. Exceptions to the general rule of disallowance may be warranted, but any exception should be analyzed and fashioned according to whether it provides a measurable benefit to the donee. By following a measurable benefit to the donee standard, emphasis will be placed on providing a tax benefit that is administrable and that is based on the goal — donee benefit. Any resulting complexity should be viewed as a cost of the incentive, and weighed accordingly in deciding whether it should be provided.

Steve Clowney

A Property Rights Win at the Supreme Court

Ilya Somin argues that the Supreme Courts recent unanimous opinion in Horne v. Department of Agriculture is a modest but potentially important victory for proponents of strong private property rights:

The Hornes are California raisin farmers seeking to challenge the constitutionality of a provision of the Agricultural Marketing Agreement Act of 1937 that requires them to turn over a portion of their raisin crop to the federal government in order to create an artificial scarcity in the market and prop up the price of raisins. They claim that this requirement violates the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever private property is “taken for public use” (the Hornes and other growers are not compensated for the expropriated raisins). The Supreme Court today did not rule on the issue of whether the Takings Clause was violated here. But it did unanimously overrule the Ninth Circuit’s decision that federal courts lacked jurisdiction to hear the Takings Clause case in the first place, because the Hornes were required to first pay the massive $483,000 fine imposed by the Agriculture Department, and then pursue various administrative remedies before getting their day in court. As Justice Thomas explains in his opinion for the Court, there were no meaningful alternative remedies available to the Hornes, because all such were closed off by federal statutes. In addition, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another proceeding.” He might have added that imposing such a requirement would be a heavy burden on property owners who cannot afford to wait for years of administrative and judicial proceedings to get their money back. Damon Root and Lyle Denniston have more details on the case and its potential significance.

Somin notes, rightly, that the case may herald some broader changes in the Court's thinking as well:

But there is at least a small chance that the ruling will have a broader effect. One of the arguments rejected in today’s opinion was the claim that federal courts lacked jurisdiction to hear the case under the Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank, which holds that property owners claiming that they have been the victims of an uncompensated taking cannot bring a case in federal court until they have first been denied compensation in any potentially available state regulatory or judicial proceedings. Until that happens, the claims are not considered “ripe.” As I discuss in this article (pp. 23-26), Williamson County makes it impossible to bring many takings claims in federal court at all; once state courts have rejected the takings claim, federal courts are often precluded from reviewing it by the Court’s later decision in San Remo Hotel v. San Francisco (2005). No other category of constitutional rights claim is systematically denied access to federal court in the same way.

Horne certainly does not overrule Williamson County. But in footnote 6, the Court notes that Williamson County’s “ripeness” requirement is not a bar to federal court jurisdiction because “[a] “Case” or “Controversy” [as required for federal jurisdiction by Article III of the Constitution] exists once the government has taken private property without paying for it. Accordingly, whether an alternative remedy exists does not affect the jurisdiction of the federal court.” [emphasis added]. Normally, ripeness is a constraint on federal court jurisdiction. If the Williamson County regime can’t be justified on jurisdictional grounds, it is not clear what – if anything – justifies it at all. If it really is true that a Takings Clause case arises “once the government has taken private property without paying for it,” then it should not matter whether that violation of the Constitution might be remedied by a state proceeding instead of a federal one. There is still a federal constitutional case that can be brought in federal court.

Steve Clowney

Blumm & Erickson on Federally Owned Wild Lands

Michael Blumm (Lewis & Clark) and Andrew Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been on SSRN.  Here's the abstract:

The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations.

This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.

Steve Clowney

Who Owns the Church of the Holy Sepulchre?

Slate takes a look at the property claims over the Church of the Holy Sepulchre, venerated as the site of the crucifixion, burial, and resurrection of Jesus:

Under an 1852 mandate, the care of the Church of the Holy Sepulchre is shared by no less than six Christian denominations: the Greek Orthodox, Armenian Apostolic, Roman Catholic, Coptic, Ethiopian, and Syriac Orthodox churches. The Holy Sepulchre’s edifice is carefully divided into sections, with some commonly shared, while others belong strictly to a particular sect. A set of complicated rules governs the transit rights of the other groups through each section on any given day, and some of the sections of the church remain hotly disputed. Arguments and fistfights over territory and boundaries are not uncommon.

One such area is a small section of the roof which is disputed between the Copts and Ethiopians. At least one Coptic monk at any given time sits there on a chair placed on a particular spot to express this claim. On a stifling summer day in 2002, a monk moved his chair eight inches to find shade. This was interpreted as a hostile act and violation of boundaries, and 11 were hospitalized after the fight that ensued.

The Church of the Holy Sepulchre’s “immovable ladder” is a centuries-old symbol of this extreme territoriality. During the early 1800s, a man belonging to an unknown sect placed the ladder on a ledge against an exterior second-floor wall of the church. Due to the imposition of the status quo and the fear of inciting violence, no one has dared touch it since. 

Excepting, of course, the time in 1997 when a mischievous tourist named Andy plucked it from the ledge and hid it behind an altar, where it remained undiscovered for weeks. The ladder has since been put back into its “appropriate” spot.

Steve Clowney

When Can a Policeman Commandeer Your Vehicle? What About Sherlock Holmes?

James Daily, guest-blogging at Volokh, takes a quick look at the law of commandeering:

We’re all familiar with the trope: a police officer finds himself or herself in need of a vehicle and so announces to the driver that they are commandeering it for police use. But what is the legal basis for this, particularly in New York? [...]

One basis for this might be N.Y. Penal Law § 195.10, which makes it a misdemeanor to refuse to aid a police officer when commanded to reasonably aid the officer in effecting an arrest or to prevent the commission of a crime. It has been argued that such statutes are actually unconstitutional, though they have a history in English law dating back to at least the thirteenth century. Jon C. Blue, High Noon Revisited: Commands of Assistance by Peace Officers in the Age of the Fourth Amendment, 101 Yale L.J. 1475 (1992). However, twenty-one years after Judge Blue’s essay was published, § 195.10 remains on the books and apparently undisturbed, if little used these days.

Steve Clowney

Lee on Just Compensation

Brian Lee (Brooklyn) has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain (Columbia) on SSRN.  Here's the abstract:

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.

Steve Clowney

Professors' Corner on Wednesday

From the ABA:

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, June 12, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program involves some recent case developments on issues of interest to both Real Property and Trust and Estate practitioners.  Our featured speakers will be Professors John Orth, Tanya Marsh, and Matt Festa.

John Orth is the William Rand Kenan Jr. Professor of Law at the University of North Carolina School of Law in Chapel Hill, NC, where he has taught since 1978. He teaches Property, Advanced Property, Trusts and Estates, and Legal History. He has published extensively on the subjects of property, legal history, and state constitutional law. Prof. Orth is a contributing author to the treatise Thompson on Real Property for the subject of concurrent estates, and has served as an Associate Editor and a contributor to the American National Biography series.  Prof. Orth will be discussing Reicherter v. McCauley, a Kansas appellate decision addressing whether one joint tenant can effect a “secret severance” of a joint tenancy via a quitclaim deed to himself via a deed executed in anticipation of death.  Time permitting, he will also discussBridgeview Bank Group v. Callaghan, a recent Florida appellate decision addressing whether a creditor may introduce evidence to rebut the presumption that a deed to a married couple was intended to create a tenancy by the entirety.  Here’s a link to Reicherter:  http://www.kscourts.org/cases-and-opinions/Opinions/CtApp/2012/20120713/106622.pdf

And to Callaghan:  http://www.flprobatelitigation.com/uploads/file/4D11-631_op[1].pdf

Tanya Marsh is an Associate Professor of Law at the Wake Forest University School of Law in Winston-Salem, NC, where she began teaching in 2010, following ten years practicing real estate and corporate law in Indianapolis, Indiana. She teaches Property and Real Estate Transactions, and is a contributing editor to the Property Prof Blog. Prof. Marsh is the incoming Chair of the Real Property Division Legal Education Committee for the ABA Real Property, Trust & Estate Law Section.  She will be discussing In re Estate of Whalen, a recent Iowa Supreme Court decision addressing whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the deceased spouse’s written burial instructions.  Here’s a link to the Whalen decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20130222/12-1927.pdf

Matt Festa is a Professor of Law at the South Texas College of Law in Houston, TX, where he has taught since 2007. He teaches and researches in the areas of property law and land use, state & local government, energy & environmental law, trusts & estates, legal history, and national security law. He is the editor of the Land Use Prof blog.  Matt will be discussing a Texas Supreme Court decision, Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline — Texas, LLC, in which the Court addressed whether a “common carrier” pipeline company with statutory authority to exercise eminent domain may do so for the construction of a private pipeline.  Here’s a link to the decision: http://www.supreme.courts.state.tx.us/historical/2012/mar/090901rh.pdf

Map of the Day: The Highest Paid State Employee Where You Live

The highest paid public employee in your state is probably a football coach.  Or maybe a basketball coach.  But almost certainly a coach.  Deadspin points out that this isn't a good thing:

There are at least three problems.

1. Coaches don't generate revenue on their own; you could make the exact same case for the student-athletes who actually play the game and score the points and fracture their legs.

2.  It can be tough to attribute this revenue directly to the performance of the head coach. In 2011-2012, Mack Brown was paid $5 million to lead a mediocre 8-5 Texas team to the Holiday Bowl. The team still generated $103.8 million in revenue, the most in college football. You don't have to pay someone $5 million to make college football profitable in Texas.

3.  This revenue rarely makes its way back to the general funds of these universities. Looking at data from 2011-2012, athletic departments at 99 major schools lost an average of $5 million once you take out revenue generated from "student fees" and "university subsidies." If you take out "contributions and donations"—some of which might have gone to the universities had they not been lavished on the athletic departments—this drops to an average loss of $17 million, with just one school (Army) in the black. All this football/basketball revenue is sucked up by coach and AD salaries, by administrative and facility costs, and by the athletic department's non-revenue generating sports; it's not like it's going to microscopes and Bunsen burners.

Steve Clowney