Ernest J. Brown, tax giant: a personal remembrance. (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 to talk about those incredible productions and he found an envious audience in me. When PBS ran a series of Gilbert and Sullivan productions -- ranging from the little known Cox and Box to the more popular Mikado -- he would eagerly approach me in the law library the next day to see how I enjoyed the broadcast. If I had missed the show, his face would fall and I would feel as though I had let him down. He knew far more about the productions than I did, but he relished talking about the acting abilities of Nanki-Poo and Yum-Yum (not to mention the Grand Poobah).

The biggest treat for the attorneys in the Tax Division did not involve discussing arcane provisions of the tax law, but rather listening to Mr. Brown talk about his World War II service in the Army Air Force and Office of Strategic Services (the predecessor to the CIA). A modest and soft-spoken man, he was never one to brag and he only discussed his flying days after much prodding (and generally in small groups). He was stationed in China with the OSS and often worked behind enemy lines to report troop movements. He often laughed about sitting in beat-up, drafty planes as he "flew the hump." He was awarded a bronze star for his service.

Mr. Brown also received awards for his service to the Tax Division. In 1981, he received the Justice Department's Distinguished Service Award for his work in Commonwealth of Puerto Rico v. Blumenthal, a complicated excise tax case that won the government more than $2 billion in financial savings. Ten years later, he received the Distinguished Presidential Rank Award from President George H.W. Bush.

After I left the Department in 1985, I often ran into Mr. Brown on his lunch-time walks around the main Justice building on Pennsylvania Avenue. He would bow slightly and inquire in his soft Louisiana accent how I was doing. In recent years, his physical health obviously deteriorated, but his mind remained as quick and lively as ever. As his former appellate section boss, Mike Paup, told The Washington Post upon Mr. Brown's retirement last year, "It's often said about senior practitioners that they `have forgotten more than I ever knew.' In Ernest's case, I don't think he forgot."

There's a story that circulated the Justice Department shortly after Attorney General Reno took office in 1993. The new head of the Department called in all her division heads for a briefing. When she got to the Tax Division, she remarked, "All I know about tax I learned from Ernie Brown at Harvard." There was a slight pause. "He works for you now," was the reply. The next morning the Attorney General appeared at Mr. Brown's door and she came back every May 30 thereafter with a birthday cake for him.

When he retired last year, General Reno stated, "Ernest Brown represents to me what public service is about. After a full career as a professor of constitutional and tax law at Harvard Law School, he has served over 30 years here in the Department. The Department of Justice has been well served by his knowledge and expertise as well as his love of the law and the Constitution."

An extraordinary man. An extraordinary life. I count myself fortunate to have known a giant such as Ernest Brown.