Professor Jason Jarvis, Coerced Corporate Consent -- Emory Law Journal (forthcoming)

Professor Jason J. Jarvis's article, Coerced Corporate Consent, (SSRN) will be published in the Emory Law Journal, 75 Emory L..J. (forthcoming 2026). The article posits that the decision whether a statute violates a corporation's due process rights should be considered on a case-by-case basis, with certain industries and company sizes at greater risk of coercion than others.

Abtract of Coerced Corporate Consent

Corporations are not human beings, but they have rights, including the constitutional right of due process. The Supreme Court recently held in Mallory v. Norfolk that due process is satisfied when a state requires that a corporation consent to personal jurisdiction before it can conduct business in that state. The Court did not analyze, however, whether such business registration statutes can be coercive, and if so, when. 

Involuntary consent is an oxymoron. Consent must be knowing and voluntary, and consent extracted by threat is coerced and invalid. These concepts seem intuitive when applied to people but less so when applied to corporations. How can a corporation feel threatened? When do coercion principles apply to corporate actions? 

To answer these questions, this Article first discusses the philosophical underpinnings for consent and coercion, the relevant historical background for jurisdiction by consent, and the animating constitutional principles. On these bases, it concludes that coercion can apply in state-to-corporation relationships, that jurisprudence and scholarship supports this application, and that the constitution protects corporations from unfair conditions imposed by states. 

The Article then argues that a state violates a corporation’s due process rights when the corporation will experience a threat if it loses the privilege of conducting business in such state because the corporation needs to do business there or will cease to exist as established. Put differently, when a state wields more market power than a corporation can voluntarily resist, it coerces the corporation’s consent, rendering such consent invalid. 

That said, not all state registration statutes are coercive because not all states threaten all corporations. The voluntariness of a corporation’s decision to do business in a state depends on the particular state and the particular corporation—the bargaining power of some (but not all) states can coerce some (but not all) foreign corporations. Thus, whether a statute violates due process should be considered on a case-by-case basis, with certain industries and company sizes at greater risk of coercion than others. This Article concludes by offering a proposed mechanism to make that assessment.

Professor Jarvis's forthcoming article is cited in the California Corporate & Securities Law blog article, "Is Registration As A Foreign Corporation A Form of Compelled Consent?" The article considers a Nevada bill that would bestow personal jurisdiction on business entities who register in the state.

Excerpt from "Is Registration As A Foreign Corporation A Form of Compelled Consent?"

In a forthcoming article, Professor Jason Jarvis argues:

"Involuntary consent is an oxymoron.  Consent must be knowing and voluntary, and consent extracted by threat is coerced and invalid."

Professor Jarvis posits a case-by-case approach to consent whereby the "voluntariness of a corporation’s decision to do business in a state depends on the particular state and the particular corporation". 

The provisions of the California Civil Code concerning contracts and consent line up nicely with Professor Jarvis' premise.  Consent is "essential" to the formation of a contract, Cal. Civ. Code § 1550(2), and that consent must be "free",  Cal. Civ. Code § 1565(1).  Consent is neither "real" nor "free" when obtained through: duress, menace, fraud, undue influence or mistake.  Cal. Civ. Code § 1567. 

The complete article may be found at California Corporate & Securities Law