Professor Jason Jarvis, Coerced Corporate Consent -- Emory Law Journal

Professor Jason J. Jarvis's article, Coerced Corporate Consent, (SSRN) is published in the Emory Law Journal, 75 Emory L.J. 629 (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 United States Supreme Court recently held in Mallory v. Norfolk Southern Railway Co. 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. These unanswered questions expose corporations to previously unexplored risks.

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 of 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 support 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 would experience a threat if it loses the privilege of conducting business in such state because the corporation needs to do business there or would 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.