272
Opinion of Kennedy, J.
Young was not an isolated example of an instance where a state forum was unavailable. See, e. g., Osborn, supra, at 842-843 (explaining that if it was within the power of the plaintiff to make the State a party to the suit it would "certainly [be] true" that a suit against state officials would be barred, but if the "real principal" is "exempt from all judicial process" an officer suit could proceed); United States v. Lee, 106 U. S. 196 (1882) (permitting suit for injunctive relief to proceed where there did not otherwise exist a legal remedy for the alleged trespass); Poindexter v. Greenhow, 114 U. S. 270, 299 (1885) (explaining that the state-law remedy for Virginia's unconstitutional refusal to accept its own bond coupons in satisfaction of state taxes was, in fact, "no remedy"). In these early cases, the Court, although expressing concern over the lack of a forum, did not rely on the lack of a forum as its doctrinal basis. After abandonment of Osborn's rule that a suit was not against the State so long as the State was not a party of record, see Governor of Georgia v. Madrazo, 1 Pet. 110, 124 (1828), the Young fiction was employed where "the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." In re Ayers, 123 U. S. 443, 502 (1887). In other words, where the individual would have been liable at common law for his actions, sovereign immunity was no bar regardless of the person's official position. See, e. g., Lee, supra, at 221 (common-law tort of trespass); Belknap v. Schild, 161 U. S. 10, 18 (1896) (common-law tort of patent infringement); Tindal v. Wesley, 167 U. S. 204, 221-222 (1897) (common-law tort of trespass); Scully v. Bird, 209 U. S. 481, 483 (1908) (common-law tort of injuring plaintiff's reputation and sale of certain products). Under this line of reasoning, a state official who committed a common-law tort was said to have
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