Ernest J. Brown, tax giant: a personal remembrance.

• Author: Fahey, Mary Lou
• Position: In Memoriam

The tax world lost a titan in December. Although perhaps not well known among TEI members, Ernest Brown, former Special Litigation Counsel with the Tax Division of the U.S. Department of Justice, left his mark on every piece of major appellate tax litigation for the past 30 years. Mr. Brown retired from the Justice Department in January 2001 at the age of 94.

Mr. Brown's service at the Justice Department came after he retired from teaching constitutional and tax law at the Harvard Law School in 1971. Among his former students were two Attorneys General under whom he served -- Elliott Richardson and Janet Reno -- and five current members of the Supreme Court -- Stephen G. Breyer, Ruth Bader Ginsberg, Anthony M. Kennedy, Antonin Scalia, and David H. Souter. He also taught such tax luminaries as former IRS Commissioner Donald Alexander and former Assistant Treasury Secretary Donald Lubbick. Hundreds of other tax and constitutional scholars passed through his classroom from 1946 through 1970.

I first met Ernest Brown when I joined the appellate section of the Justice Department's Tax Division in 1980. He was a legendary figure by then and a bit intimidating to a neophyte attorney just out of law school.

I vividly remember my first encounter with him. I had drafted an opposition to a petition for a writ of certiorari to the Supreme Court (cert ops, as we called them) which involved a procedural issue. After running through several layers of review, the cert op finally landed on Mr. Brown's desk. He was not happy with it. He arrived at my office door, holding the document by the edge as if it would bite. He dropped it on my desk, pointed a finger at an offending paragraph, and stated in stentorian tones, "This is wrong." With no further explanation, he turned and began to leave.

"But," I managed to stammer, "Moore's [Federal Practice] says ..." I got no further. Mr. Brown turned and said to me, "Moore's is wrong." He then left, leaving me to ponder whether I should have taken up labor law.

Sometime later, I managed to redeem myself when he discovered my passion for theater, including Gilbert and Sullivan operettas. When Mr. Brown (I could never bring myself to call him Ernest or Ernie) taught at the University of Buffalo School of Law in the 1930s, he would regularly travel to New York City to catch the shows. There he saw such theatrical names as the Barrymores -- John, Ethel, and Lionel -- and the two Katherines -- Cornell and Hepburn. He loved...