Sovereign immunity (also known as governmental immunity) in American law was derived from the British common law doctrine that the King could do no wrong—and thus could not be sued. Sovereign immunity varies from state to state, but typically applies to state governments as well as the federal government.

But federal and state governments (generally the U.S. Congress and state legislatures) have the ability to waive their sovereign immunity. Waivers of sovereign immunity are usually included in state and federal statutes, and interpreted and applied by state and federal courts in court opinions.

For example, sovereign immunity protects the state and its various provisions of state government—including agencies, boards, hospitals, and universities—from liability and from suit—unless the immunity has been waived. Similarly, sovereign immunity protects political subdivisions—including counties, cities, and school districts—from liability and from suit—unless the immunity has been waived.

Thus, sovereign immunity encompasses two principles: (1) immunity from suit and (2) immunity from liability. Immunity from suit bars a suit against the state or other governmental entity unless the Legislature expressly gives consent. Immunity from liability protects the state or other governmental entity from judgments even if the Legislature has expressly given consent to sue.

In some states, when a governmental entity contracts, it is liable on contracts made for its benefit as if it were a private person. Consequently, when a governmental entity contracts with private citizens it waives immunity from liability. But the governmental entity does not waive immunity from suit simply by contracting with a private person. Legislative consent to sue is still necessary.

A party may establish legislative consent by referencing a statute or a resolution granting express legislative permission. Legislative consent to sue the state or other governmental entity must be expressed in clear and unambiguous language.

In New York, sovereign immunity is a legal doctrine that protects the state government, its agencies, and political subdivisions from being sued or held liable in certain situations, unless this immunity has been explicitly waived by statute. The New York Court of Claims Act is one such statute that allows for the state to be sued in the Court of Claims for specific actions, such as certain tort claims and breach of contract. However, the waiver of immunity is limited to the instances specified by the legislature and must be expressed in clear and unambiguous terms. For example, the state may be liable on contracts it enters into, similar to a private party, but this does not mean the state has waived its immunity from being sued without legislative consent. Additionally, local governments in New York may be sued under certain circumstances as provided by law, but they also enjoy sovereign immunity that can only be waived through explicit legislative action.