New Must-Read Article: Anna Fein, Pants on Fire: How the Brinkmann Majority Forgot About the Takings Clause in a Takings Clause Case, 99 S. Cal. L. Rev. 405 (2025)

Be sure to check out this student note which criticizes the Second Circuit’s approach to pretextual takings in Brinkmann v. Town of Southold, 96 F.4th 209 (2d Cir. 2024), and offers a different way to analyze cases in which the government’s stated public use doesn’t appear to be its actual use or purpose for exercising eminent domain.

In Pants on Fire: How the Brinkmann Majority Forgot About the Takings Clause in a Takings Clause Case, 99 S. Cal. L. Rev. 405 (2025) (also available as a pdf here), the author, in an easily-readable way, criticizes the 2-judge majority and its conclusion that as as long as the government states a public use within the four corners of the resolution, that a court will do nothing except in cases where there’s an allegation that the stated public use is a pretext to private benefit. If the pretext is to some other public use or purpose, tough beans:

What happened to the Brinkmanns, however, is arguably the exact opposite of favoritism. Thus, this Note extrapolates the tripartite burden-shifting framework to takings arising out of disfavor, from reasons ranging from discrimination and animosity to outright bias. Such an inquiry has largely gone unexplored due to the common assumptions that (1) strict deference to the legislature should somehow justify or excuse bad-faith takings or (2) the Equal Protection Clause is sufficient to address discriminatory takings. This Note will address both of these arguments and also illustrate what is at stake if bad-faith takings continue to slip consequence-free through the cracks of American jurisprudence.

Section I briefly provides an overview of takings in general, largely focusing on the history of the rapid expansion of “public use.” Section II explores Brinkmann’s reasoning, highlighting its many legal conclusions, each of which exhibits flaws. Section III focuses on the Ninth and Seventh Circuits to discuss the federal circuit split. Finally, Section IV examines the tension between rational basis review and some unspecified form of heightened scrutiny proposed by Justice Kennedy’s concurrence in Kelo v. City of New London. Section IV then uses Justice Kennedy’s heightened scrutiny suggestion as an entry point to examining the tripartite burden-shifting framework and its application to takings motivated by discrimination and bias. After extrapolating Kelly’s scholarship to bad-faith takings, Section IV examines the perils of adopting rational basis review instead. Section IV further underscores why the Equal Protection Clause and the doctrine of unconstitutional animus, while attractive solutions at first glance, are actually inadequate to the task in this context. Section IV concludes with an assessment of Brinkmann’s societal impact.

The situation here is what we call a “spite taking” (where the apparent purpose of the taking is not so much to promote a public use or benefit, but a pretext to stop a property owner from making some publicly-disfavored use of his or her land). Are these okay under the Public Use requirement because — as the Second Circuit panel majority held — that it is just fine to do good things for bad reasons, and who cares about motivation as long as the stated use is public and not a pretext to a private benefit. Or does it offend the Public Use Clause — as other courts have held — to say you’re taking it for some public use, when your real motivation is something else (even if not a private benefit)?

Underlying all this is what we see as the predicate question: should the government be in the business of using eminent domain to forcibly acquire private property because the owner is making — or as here, proposes to make — an allowed use of the property that the government or the public doesn’t like?

Brinkmann came as close as you can get to Supreme Court review without actually getting it (one Justice shy of what’s needed), and has already generated scholarly interest and commentary, so this issue is not going away.

Indeed, we have a case on this very issue right next door, in the First Circuit, in which the district court is hearing cross-motions for summary judgment today.

Be sure to check the piece out. Worth your time and a good, informative read.