Seeking to fill a gap in the scholarship between Supreme Court takings' jurisprudence and what lower state and federal courts actually do in takings cases, James Krier (Michigan) and Stewart Sterk (Cardozo) examined more than 2,000 reported cases decided between 1979 and 2012. While their analyses are largely descriptive, An Empirical Study of Implicit Takings will certainly interest property scholars as well as those interested in the "legal impact" literature as it reports findings from "the first comprehensive analysis of takings decisions (other than those dealing with explicit exercise of the condemnation power) by state and lower federal courts."
What the authors find is that "state courts tend in certain circumstances to provide less protection to private property than Supreme Court doctrine requires, though they (and state legislatures) occasionally provide more. An apt generalization about state court decisions is that they regularly reflect ignorance of (or indifference to) Supreme Court teachings, which place virtually no significant constraints on state activities regarding property in any event.... State courts, in turn, have mostly relied on state political processes – as opposed to judicial oversight – as the primary check on property rights abuse. State courts are the most likely to find takings in cases in which the government actors responsible for harm to landowners are least likely to be politically accountable."