concurring and dissenting.
In Avco Financial Services Consumer Discount Co. One v. Director, Division of Taxation, 100 N.J. 27 (1985), we upheld this State’s constitutional power to tax foreign corporations that derive income from sources within New Jersey. Today, the Court effectively deprives state officials of their most important means of assuring that the taxes which we said in Avco can be imposed in fact will be imposed. In the name of interstate commerce, the plurality has drained all effectiveness out of the Corporation Business Activities Reporting Act, reducing that statute to a supplication. Unable to agree that this anomalous result is consistent with the underlying purposes *294and judicial interpretation of the dormant commerce clause, I dissent.1
I.
The plurality opinion correctly frames the threshold doctrinal inquiry: whether the Reporting Act amounts to a per se violation of the commerce clause or whether it is to be judged under the balancing test laid down by the United States Supreme Court for state regulations having a legitimate nondiscriminatory purpose. See Coons v. American Honda Motor Co., 94 N.J. 307, 316-17 (1983), cert. den., 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985). And the plurality opinion correctly decides that the more accommodating balancing test applies. As explained infra at 300-308, I disagree with the plurality’s application of that test to the statute challenged here. But before entering into that discussion, I want to spell out my reasons, which are somewhat different from the plurality’s, for concluding that the balancing test should apply, that is, for concluding that a state’s closing of its courthouse doors to a foreign corporation that refuses to comply with its legitimate regulations does not automatically transgress the dormant commerce clause.
At the heart of the dormant commerce clause lies a deep-seated concern over states adopting policies of economic protectionism — policies designed to enhance the welfare of one state’s own economy at the expense of the economies of other states. The Supreme Court has translated this concern into law by reading into Congress’ power to regulate interstate commerce, conferred by Article I, Section 8, Clause 3 of the Constitution, an exclusive power in certain matters off-limits to state encroachment, at least without congressional authorization. In giving a strong voice to this silent prohibition, the Court has recognized that the nation’s political unity and economic pros*295perity depend on a vibrant commercial intercourse across state boundaries and that discriminatory or protectionist state legislation poses a substantial threat to those vital national interests. See generally H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Regan, “The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause,” 84 Mich.L.Rev. 1091, 1110-25 (1986); Smith, “State Discriminations Against Interstate Commerce,” 74 Calif.L.Rev. 1203, 1206-10 (1986).
This anti-discrimination or anti-protectionism principle not only justifies the Court’s exercise of its power to invalidate state legislation affecting interstate commerce but also, in large measure, circumscribes that power. “[N]ot every exercise of state authority imposing some burden on the free flow of commerce is invalid.” Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 349, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383, 398 (1977). Nondiscriminatory state regulations that advance some legitimate local interest have generally been sustained. Regan, supra, 84 Mich.L.Rev. at 1092; Smith, supra, 74 Calif.L.Rev. at 1204. Thus, whereas state legislation motivated by “simple economic protectionism” is subject to “a virtually per se rule of invalidity,” City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475, 481 (1978), “[wjhere the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits,” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174, 178 (1970).
No contention has been, or could be, made in this case that the statute challenged by plaintiff is motivated by “economic protectionism.” It is true that the Reporting Act has the effect of benefiting in-state economic actors and disadvantaging out-of-state corporations. But this is not the reason for its existence. Rather, in adopting the Reporting Act the Legislature *296was seeking only to provide tax authorities with the means of discovering foreign corporations falling within the ambit of the Corporation Income Tax Act (CITA), N.J.S.A. 54:10E-1 to -24, which assesses a tax on income derived from sources within New Jersey. See 5 Report of the New Jersey Tax Policy Committee 33 (1972) (.Report). CITA itself is a wholly legitimate attempt to impose taxes on value earned by foreign corporations from inside New Jersey bearing a fiscal relation to the protection, opportunities and benefits New Jersey affords these corporations. Avco Fin. Servs. Consumer Discount Co. One v. Director, Div. of Taxation, supra, 100 N.J. 27; see ASARCO Inc. v. Idaho State Tax Comm’n, 458 U.S. 307, 315, 102 S.Ct. 3103, 3108, 73 L.Ed.2d 787, 794 (1982). “[Ejquity demands” — and as we held in Avco, the commerce clause permits — that “business carrying on activities in the State and exploiting the New Jersey market make some contribution to the costs of maintaining governmental operations and the services provided by the State____” Report, supra, at 22. The fact that the Reporting Act, like the CITA, may have some incidental protectionist effect does not make it unconstitutional; protectionist purpose is what the commerce clause forbids. Regan, supra, 84 Mich.L.Rev. 1091.
Moreover, the Reporting Act does not discriminate between domestic and foreign corporations. Domestic corporations are also required to file tax returns providing information about their business activities subject to taxation, see N.J.S.A. 54:10A-14(b), -18, and are subject to various sanctions, including forfeiture of the corporate charter, for failure to pay taxes or file returns, see N.J.S.A. 54:10A-17, -22.
Against this backdrop, the Supreme Court cases most relevant in this case, the so-called “forced-licensure” decisions, have been viewed as somewhat puzzling, for they apply a per se rule of invalidity even though no state protectionism or discrimination appears to be involved. See Regan, supra, 84 Mich.L.Rev. at 1182, 1188-89. This line of cases invalidates state qualification statutes that force foreign corporations engaged in inter*297state commerce to register with the state on pain of losing access to the state’s courts. See Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921); Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193 (1914); Buck Stove & Range Co. v. Vickers, 226 U.S. 205, 33 S.Ct. 41, 57 L.Ed. 189 (1912); International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678 (1910).
The plurality distinguishes the forced-licensure decisions on the basis of various factual differences tending to minimize the Reporting Act’s burden in comparison to that of the invalidated qualification statutes. But the plurality does not satisfactorily explain the relevance or importance of these distinctions, nor answer the dissenting opinion’s contention that the damning feature of the forced-licensure statutes is their sanction barring a foreign corporation from enforcing contracts made in interstate commerce. This latter defect is particularly surprising given the plurality’s subsequent strong emphasis, in the part of its opinion applying the balancing test, on the severity of the Act’s door-closing sanction.
Were our task strictly one of determining how to achieve literal conformance to the Supreme Court’s statements — as distinguished from its holdings — on this subject, I might agree with the dissenting opinion’s conclusion that the per se rule applies here. Undeniably, the Court’s forced-licensure opinions contain language strongly suggesting that states must keep open their courthouse doors to those seeking to enforce interstate contracts.2 Absent a clear holding to this effect, how*298ever, our inquiry must proceed further, to the wisdom of such a rule. And we should be most reluctant to take language to what admittedly may be its logical extreme where, as here, the consequence is to deprive the state of its power to do that which seems to offend no constitutional value or policy. Our ultimate responsibility is to arrive at a considered judgment as to how the Supreme Court, if faced with the question, would rule. I simply cannot believe the Supreme Court would hold that the dormant commerce clause requires us to invalidate an otherwise unobjectionable state regulation merely because it has the effect of rendering unenforceable a contract made in interstate commerce.
In circumstances such as these, we should ask whether there is an alternative interpretation of the case law that satisfies our obligation as an inferior tribunal on federal questions without sacrificing our convictions about what the Constitution means. I believe such an interpretation exists in this ease.
In my view, the Supreme Court’s forced-licensure decisions are properly read as focusing not on the severity of the door-closing sanction but on the illegitimacy of the underlying regulation to which the sanction attaches. The constitutional defect in the qualification statutes — and the key distinguishing factor between those statutes and the Reporting Act — is that the regulatory end they sought to achieve was invalid. By the time of these decisions, the principle had already been well-established that a state cannot require a foreign corporation to take out a doing-business license when in fact that corporation was not doing business in the state but was engaged solely in interstate commerce. See, e.g., Crutcher v. Kentucky, 141 U.S. 47, 58, 11 S.Ct. 851, 854, 35 L.Ed. 649, 652 (1891) (vacating criminal conviction imposed on agent of interstate corporation for failure to register before doing business in state). When *299the Court first struck down a statute with a door-closing sanction in International Text-Book Co. v. Pigg, supra, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, it was reacting not to the sanction but to the illegitimacy of the underlying regulation, and simply applied the previously established rule forbidding such attempts at licensing foreign corporations. See id. at 108-10, 30 S.Ct. at 485-86, 54 L.Ed. at 686-87 (relying on Crutcher v. Kentucky, supra); Buck Stove & Range Co. v. Vickers, supra, 226 U.S. at 215, 33 S.Ct. at 43, 57 L.Ed. at 192 (Pigg did not “announce[ ] any new doctrine ..., it but reiterated and applied principles which were already well recognized”).
This view of the forced-licensure cases was advanced by the majority opinion of this Court in Coons v. American Honda Motor Co., supra, 94 N.J. 307. In Coons this Court invalidated a provision tolling the statute of limitations in actions against foreign corporations engaged solely in interstate commerce that had not obtained a certificate to do business in New Jersey. We quite properly declined to attach talismanic significance to the door-closing sanction involved in the Pigg line of cases. Those cases, we said, “focused on the importance of leaving interstate commerce unfettered. As applied to this case that principle gives rise to the question whether the denial of the statute of limitations defense to unlicensed foreign corporations impermissibly — even though indirectly — forces those corporations to obtain a license to do business in the state.” Id. at 318 (emphasis added). It was this impermissible regulatory objective, not the sanction, that triggered the condemnation of the dormant commerce clause. “The legislature cannot accomplish indirectly that which it could not do directly----” Id.
That the Supreme Court does not view application of a door-closing sanction against a foreign corporation to be a per se burden on interstate commerce is made clear by its decisions in Eli-Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961), and Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227 (1944). In those *300cases, the Court held that the commerce clause allows a state to deny a foreign corporation access to the state’s courts for failure to comply with a qualification statute if the corporation, although also engaged in interstate commerce, does a sufficient amount of intrastate business. What made these door-closing sanctions constitutional was the propriety of the regulation itself. See L. Tribe, American Constitutional Law § 6-12, at 341 (1978) (Eli Lilly held that “New Jersey could properly require this multi-state drug company to obtain a certificate prior to doing local business there, and that [the company]— having failed to obtain such a certificate — could be barred from suing for breach of contract in New Jersey courts”).3
Why is it impermissible — more specifically, why is it a violation of the commerce clause — for a state to force a foreign corporation exclusively engaged in interstate commerce to qualify to do business in the state? As previously mentioned, such qualification statutes do not necessarily discriminate in favor of the state’s own corporations. The cases themselves do not provide a clear answer, but one commentator has offered a plausible explanation: the statutes condemned in Allenberg Cotton and its predecessors disadvantage interstate commerce “as such.” That is, “a proliferation of qualification-to-do business requirements applied to firms with minimal local contacts could have the effect ... of disadvantaging interstate commerce just because such commerce straddles political boundaries.” Regan, supra, 84 Mich.L.Rev. at 1189. Corporations should not, merely by virtue of engaging in interstate com*301merce, give up their control over their amenability to jurisdiction in foreign states or over the disclosure of important financial information. The qualification statutes forced foreign corporations to do precisely that, and hence penalized those corporations solely because they were engaged in interstate commerce.
New Jersey’s Reporting Act has no such effect. “[W]e have not here a case of [a] foreign corporation merely coming into [New Jersey] to contribute to or to conclude a unitary interstate transaction, nor of the State’s withholding ‘the right to sue even in a single instance until the corporation renders itself amenable to suit in all the courts of the State by whosoever chooses to sue it there.’ ” Union Brokerage Co. v. Jensen, supra, 322 U.S. at 211, 64 S.Ct. at 973, 88 L.Ed. at 1233 (citations omitted). While not localizing its activities in New Jersey to such an extent that it could be said to be doing business here, the typical foreign corporation subject to the Act will have voluntarily structured its activities in such a way as to be subject to taxation under CITA.4 The Reporting Act does not disadvantage interstate commerce “as such.” Unlike the qualification statutes, it does not “accomplish indirectly that which it could not do directly;” its regulatory objective is totally permissible. Accordingly, the per se rule of invalidity created in the forced-licensure eases does not apply. The fact *302that the sanction the Act applies for a violation of its regulation may have the effect of rendering unenforceable a contract made in interstate commerce is not salient.
II.
In the portion of its opinion declaring the inapplicability of the per se rule, the plurality acknowledges that without the Reporting Act, the Director “would find it almost impossible” to determine which corporations were subject to CITA; that compliance with CITA would become largely voluntary; and that such a result “would deprive the state of revenue, be unfair to those corporations that comply voluntarily, and give an unfair advantage to these corporations that avoid the tax.” Ante at 288.
Yet it is precisely this calamitous state of affairs that the plurality has brought on as a result of its application of the balancing test. The plurality’s “modification” of the Reporting Act — allowing a corporation to proceed with its cause of action so long as it files an Activities Report and satisfies the conditions of N.J.S.A. 14A:13-20c(2), regardless of whether the Report was filed in the same accounting period as the cause of action — means that for the vast majority of foreign corporations, compliance with the Reporting Act, and hence with CITA (violations of which, according to the plurality, are “almost impossible” to discover without the Reporting Act), will be voluntary. I cannot agree that the commerce clause mandates such an absurdity.
The plurality advances two reasons in support of its conclusion that the state interest in assuring compliance with the Reporting Act is insufficient to justify the burden placed on interstate commerce by the door-closing sanction. First, “the penalty (the value of the lost cause of action) may be completely disproportionate to any tax that might be due”; second, “the statute gives a windfall to defendants that they can exploit for *303their own economic advantage.”5 Ante at 289-290. Neither of these arguments comes close to establishing a constitutional defect.
The claim that “the penalty ... may be disproportionate to any tax that might be due” is unconvincing for several reasons. First, this claim mistakenly assumes that what is being penalized is the failure to pay tax. That is not true; what is being penalized is the failure to comply with the statute, i.e., to file a Business Activities Report. Thus, each violator has committed precisely the same offense, and it is erroneous for the plurality to assume that the amount of unpaid taxes should influence the question of “proportionality.”
This is not to deny that there is still a measure of disproportionality caused by the fact that the values of causes of action vary. The plurality neglects to point out, however, that the Act does make one important attempt to fit the penalty to the offense. The Act excuses noncompliance at the time of suit if the foreign corporation subsequently complies and if the initial failure to file “was done in ignorance of the requirement to file, [and] such ignorance was reasonable in all circumstances.” N.J.S.A. 14A:13-20c. In effect, therefore, the Act’s “stiff sanction” applies only to what could be called “willful” violators, i.e., those who had knowledge of the filing requirement. Non-willful violators are given the opportunity to avoid the sanction.
The only substantive change effected by the plurality’s rewriting of the Act’s enforcement mechanism, therefore, is to give willful violators the same opportunity as non-willful violators to avoid the sanction. The plurality does not say the sanction cannot be used at all; it permits the sanction to be *304used where a foreign corporation continues to fail to file an Activities Report and pay its taxes even after filing suit. Presumably a foreign corporation would adopt this course of action (continuing to fail to comply) where the cost of compliance (paying taxes) exceeded the value of the lost cause of action; indeed it would choose not to file the suit at all, lest the New Jersey authorities discover its existence. This strategizing will indeed lead to a greater measure of “proportionality” between the amount of the penalty and the amount of the cause of action, but it is difficult to see how the plurality’s scheme is any more fundamentally fair, much less constitutionally required. Indeed, the plurality’s change creates its own unfairness, stemming from the fact that it has left intact the Act’s “requirement” but effectively eliminated any sanction for noncompliance. This will mean that only those foreign corporations that happen to have a need to use the New Jersey courts (or that have an uncharacteristic commitment to the rule of law) will end up supplying the Activities Report and paying taxes. It is hardly fair that compliance with the Act should turn on such a fortuity.6
The plurality’s second criticism of the door-closing sanction— that it bestows a “windfall” on undeserving defendants — is even less persuasive. In numerous contexts, the law permits private litigants to come away with a “windfall” if doing so is the only or the most effective way of assuring that an important public interest is served. Statutes and common-law rules permitting plaintiffs to collect treble or punitive damages *305against malefactors, particularly corporate malefactors, who would otherwise likely go unpunished by the criminal justice system, are prime examples. Defendants who claim that a plaintiff-foreign corporation has failed to file an Activities Report perform exactly the same function.
But more fundamentally, the plurality’s insistence on proportionality and concern with windfalls seem decidedly misplaced in this context. The plurality opinion fails to consider the practical fact that undoubtedly drove the Legislature to adopt the unusual and admittedly inexact remedy of denying access to court: the absence of any effective alternative remedies. The principal alternative, fines, is likely to have little deterrent value. The genius of the door-closing sanction is that it allows the State to rely on the threat of private litigants raising noncompliance as a defense to induce foreign corporations to comply, eliminating the need for expensive enforcement machinery designed to detect violations. Moreover, a foreign corporation engaged solely in interstate business by definition has no office, bank accounts or other assets in the forum state readily subject to attachment. This means that New Jersey authorities seeking to collect a judgment against a recalcitrant foreign corporation will have to undergo the expense of instituting legal proceedings in foreign jurisdictions.
The plurality’s substitute remedy, of course, does not even include a provision for fines. The plurality’s assertion that under its remedy “the state’s interest in enforcing the Reporting Act is adequately served,” ante at 290, simply flies in the face of reality. In support of its approach, the plurality opinion quotes a law review note as stating that “this approach is not as effective as a permanent retroactive bar to the courts but is ‘preferred because it provides effective enforcement and yet is fair to the corporation.’ ” Ante at 292 (quoting Note, “Sanctions for Failure to Comply with Corporation Qualification Statutes: An Evaluation,” 63 Colum.L.Rev. 117, 130 (1963)). That Note, however, goes on to recognize what the plurality does not, namely, that such an approach is incomplete unless *306“[t]he need for deterrence” is “met by a companion provision imposing monetary penalties.” 63 Colum.L.Rev. at 130. The Act does not have such a companion penalty provision, and it is clear that the author of the Note thought such a provision indispensable to effective deterrence. In fact, the Note strongly criticizes statutory schemes embracing the plurality’s approach. “[T]hose statutes requiring payment only of past fees and taxes accruing while the corporation has illegally done business ... lack sufficient deterrent value to be effective. Clearly, the benefits inuring to the corporation that has not qualified would encourage the continued illegal transaction of business until the violation is discovered.” Id. at 122.7
Under the Supreme Court’s commerce clause balancing test, one important consideration is “whether alternative means could promote [the] local purpose as well without discriminating against interstate commerce.” Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250, 262 (1979). The plurality has failed to take this consideration into account here. It is reasonably clear that no alternative means besides the door-closing sanction could as well serve the state interest in assuring compliance with the Reporting Act.
Finally, the plurality gives insufficient consideration to the important state interest advanced by the Reporting Act and the door-closing sanction: assuring that foreign corporations pay their fair share of taxes for income they derive from New Jersey residents. “[T]axes are the lifeblood of government, the vital force needed to sustain the public interest.” City of Philadelphia v. Austin, 86 N.J. 55, 65 (1981). “When one *307taxpayer fails to bear his or her fair share, the burden becomes heavier on other taxpayers.” Id. This will certainly be one result of the rampant tax evasion unleashed by the Court’s decision today. Yet the plurality reaches its conclusion that the sanction is unconstitutional without even mentioning this basic state interest.
In sum, the plurality’s balancing analysis is unbalanced. It greatly exaggerates the “unfairness” of the “burden” imposed by the door-closing sanction on interstate commerce; ignores the unavailability of effective alternative sanctions; and neglects the undeniable importance of the state’s interest in assuring that each taxpayer pays its fair share of taxes. In my view the plurality’s crippling of the Reporting Act amounts to a needless overturning of a perfectly reasonable, and perfectly constitutional, legislative judgment.
III.
In a recent opinion, Justice Scalia warned of the hazards inherent in the judicial enterprise of determining, under the dormant commerce clause balancing test, whether a statute’s local benefits are “outweighed” by its impact on interstate commerce. See CTS Corp. v. Dynamics Corp., ___ U.S. ___, ___, 107 S.Ct. 1637, 1652, 95 L.Ed.2d 67, 89 (1987) (Scalia, J., concurring). “[SJuch an inquiry,” Justice Scalia wrote, “is ill suited to the judicial function and should be undertaken rarely if at all.” Id. Today’s decision provides sobering confirmation of Justice Scalia’s thesis. Although I am not prepared to agree that balancing lacks any appropriate role in commerce clause adjudication, it is clear to me that, if and when done, balancing should be performed with far more care and with far more sensitivity to the Legislature’s policy determinations than the plurality has exhibited here. “[A] court should not [invalidate state legislation under the dormant commerce clause] merely because it believes it to be in the public interest to determine policy where Congress has not.” Continental Trailways, Inc. *308v. Director, Div. of Motor Vehicles, 102 N.J. 526, 553 (1986) (O’Hern, J., dissenting). Because the plurality appears to have done just that in this case, producing a remedy that is no remedy at all, I respectfully dissent.
I concur in the plurality's disposition, in Part V of its opinion, of plaintiff’s supremacy clause argument.
Of special interest are Justice Douglas' conclusion in Allenberg Cotton Co. v. Pittman, supra, 419 U.S. at 34, 95 S.Ct. at 267, 42 L.Ed.2d at 206, that "Mississippi's refusal to honor and enforce contracts made for interstate or foreign commerce is repugnant to the Commerce Clause,” and Justice Rehnquist's statement in his dissenting opinion in that case, implicitly rejected by the majority, that "our decisions hold that the burden imposed on interstate *298commerce by [qualification] statutes is to be judged with reference to the measures required to comply with such legislation, and not to the sanctions imposed for violation of it," id. at 42, 95 S.Ct. at 272, 42 L.Ed.2d at 211.
While the causes of action barred in Eli Lilly and Jensen did not seek to enforce an interstate contract, I do not believe the result would have been different if they had. The critical factor is the legitimacy of the regulation itself. Whereas the commerce clause prohibits states from licensing foreign corporations engaged solely in interstate commerce, "that Clause does not imply relief to those engaged in interstate or foreign commerce from the duty of paying an appropriate share for the maintenance of the various state governments." Union Brokerage Co. v. Jensen, supra, 322 U.S. at 212, 64 S.Ct. at 973, 88 L.Ed. at 1233-34. The statute challenged in this case does no more than that.
Or, at the least, the foreign corporation will have derived sufficient revenues from New Jersey so as to be subject to the reporting requirement, even if its contacts fall short of the constitutional minimum necessary to justify an exercise of the state’s taxing power. This may be the case with plaintiff here. See Chemical Realty Corp. v. Taxation Div. Director, 5 N.J. Tax 581, 605-16 (1983). The issue has not been briefed or argued, however, and so we have no way of knowing its proper resolution. The analysis set forth in this opinion proceeds on the assumption that plaintiff is the typical foreign corporation, i.e., one whose connection with New Jersey is sufficient to justify the imposition of the CITA tax. But even if plaintiff were not subject to taxation, this would not necessarily mean that it would also be constitutionally immune from application of the reporting requirement, which imposes a lesser burden and hence arguably may be triggered by a lesser quantum of forum contacts. This issue, too, is not before us.
The plurality also criticizes the sanction for applying without regard to whether a foreign corporation is actually liable for any tax. The point is a negligible one. As the plurality itself notes, "the reporting requirement is carefully limited to those corporations that satisfy any of the conditions cited in N.J.S.A. 14A:13-15, and are therefore likely to owe a tax.” Ante at 287.
The plurality finds its enforcement scheme analogous to that contained in the Act as written, under which a corporation could similarly calculate that the cost of compliance exceeded the value of its anticipated causes of action in New Jersey. Ante at 291 n. 10. This substitutes analogy for analysis. The real question, of course, is the probability of compliance. The answer to that question is that it is exceedingly more probable that a foreign corporation would choose to comply if forced to make its decision in advance of the accrual of its causes of action — when it cannot be sure of the likelihood or magnitude of its potential loss — than if allowed to postpone making its decision until after an actual cause of action has arisen.
Even if the Act did have a provision for fines, reliance on the Columbia Note for the proposition that fines could meet the need for deterrence would be misplaced. The Note deals with statutes requiring qualification as a condition for "doing business” within a state {i.e., conducting intrastate, business). The statute at issue in this case deals with corporations engaged solely in interstate commerce. As previously noted, such corporations, unlike foreign corporations doing business within a state, will not have assets within the state and therefore will not be as effectively deterred by the prospect of .fines.