This paper investigates the nexus between cy près and justice. It asks whether the application of the cy près doctrine in the class action context has been harmonious with the demands of substantive law or whether it has subdued the “law” to the policy goals underlying class action legislations. However, more than a review of the jurisprudence, this paper seeks to articulate a sound normative framework for understanding this doctrine. In order to accomplish this goal, the paper proposes two distinct lenses or ways of conceptualizing the normative basis of cy près distributions that will assist in teasing out important features of the doctrine. First, building on Aharon Barak’s characterization of cy près as a noninterpretative doctrine, the paper will explore the idea that cy près should be seen as a vehicle for the public good, rather than doctrinal justice. Second, taking guidance from Ernest Weinrib’s understanding of private law theory, the paper will imagine cy près within the contours of corrective justice. It will conclude by arguing that a coherent picture of the cy près doctrine in the class action context must ultimately sideline the policy goals of class action legislation in favor of accomplishing the demands of substantive law. Cy près must reflect the nature of the alleged breach of the law, and not general purposes of behavioural modification or access to justice. Only then cy près is able to deliver salvation to the legal soul.
Luiz Arthur Bihari (Thu,) studied this question.