Law and History Review

Forum: “Poking Holes in Balloons”: New Approaches to Cold War Civil Rights

Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of “New Property”

Karen M. Tani

Ephram (Fedya) Nestor, a Bulgarian-born immigrant to the United States, was “an unusual person,” according to his second wife Barbara. She met him in 1933 when he was selling vegetables from his car and remembers not really liking him. “He stayed too long,” he “talked too much,” and worst of all to this devoted radical, he “passionately espoused the cause of Communism [but] he didn't know too much about it.” Interviewed when she was ninety, sharp-witted Barbara Nestor still recalled how Fedya embarrassed her at a Marxist study group with his “foolish” statements and obvious lack of knowledge about Marx or communism. His family agreed he was “not much of a Communist” when he joined the local party in 1936 and could not be trusted with the simplest duties. Nonetheless, the federal government deported Fedya in 1956 for his brief Communist Party (CP) membership.

Karen M. Tani is a law clerk to Judge Guido Calabresi, U.S. Court of Appeals for the Second Circuit, and a Ph.D. candidate in history at the University of Pennsylvania <>. She is grateful to Sarah Barringer Gordon, Michael Katz, Thomas Sugrue, and Merlin Chowkwanyun for their insightful comments. She thanks Charles Reich for his recollections of “The New Property” and Howard Lesnick for his first-hand observations of the 1959–1960 Supreme Court term. For further comments, criticisms, and support, she also thanks David Tanenhaus, the anonymous reviewers at the Law and History Review, and the audience at the 2006 American Society for Legal History meeting, especially Daniel Ernst, Laura Kalman, and Felicia Kornbluh.