The Public-Private Foundations of the Neoliberal State
When in September 2007 the weekly satirical paper Le Canard enchaîné reported that Jean-François Copé, chair of the majority parliamentary group at the French National Assembly, had also been working for several months at the Gide law firm, this news came as a revelation of the new attraction that politicians felt for the robes of the lawyer.1 Over the next few months the curiosity of journalists was aroused, as leading politicians were sworn into the bar at a steady pace. Numerous articles were published on this confusion of roles: within just a few weeks of each other, two incarnations of the politicoadministrative elite in France—former Élysée secretary general and later prime minister Dominique de Villepin and his successor in the former position, Frédéric Salat-Baroux—were admitted to the Paris bar. The former founded his own consulting firm (SAS Villepin International, January 2008) and the latter joined the highly regarded American law firm Weil Gotshal & Manges (November 2007). In 2010, two former ministers of justice were recruited by Paris law firms after their time of the ministry, following the example of a third one who two years earlier had joined the firm Orrick Rambaud Martel immediately after leaving office.
The media discussion stirred up by these so-called pantouflages—a slang word for the practice of civil servants and politicians joining the private sector2—focused almost entirely on politicians and the rising risks of conflict of interests. It therefore failed to adequately reflect the breadth and diversity of the movement that started in the 1990s between the politicoadministrative elite and major business law firms in Paris. This pantouflage into the business bar is intriguing, first of all because it was novel as it came after a period in the late 1980s when the flow of exchange between political and administrative elites and the legal profession had practically dried up. As seen in the first chapter, the French Republic was no longer a lawyers’ Republic (République des avocats) and the legal profession had long since ceased to be a breeding ground for the political elite. In addition, the traditional circuit of pantouflage to the private sector led historically to the big banks, strategic sectors, and companies who were close to public procurement, and never took them through law firms. Indeed, the current pantouflage to law firms is far from this conventional one typical of the 1970s, that prolonged, as it were, the preeminence of the state and its grands corps as guardians of the mixed economy à la française. The sudden attractiveness of the business bar also draws our attention because of its scope. Going well beyond just the most visible political figures, who were the tip of the iceberg, a much broader swathe of former section presidents at the Conseil d’État, Élysée secretaries general, members of the Conseil d’État, heads of tax departments, cabinet staff members, and public managers in various regulatory agencies, in short a wide cross section of the political and administrative elite is involved today in this circulation toward corporate law firms of Paris, whether they be French, British, or American.
Before even questioning what the new movement points to, one needs to provide a systematic cartography of these new French revolving doors. To this aim, we have attempted to collect all the individuals that have moved from politics and government positions to the business law firms of Paris since the early 1990s. The assumption is that by drawing a collective sociological portrait of these pantoufleurs (their breeding grounds, springboards, pathways, etc.), one can reveal, the way chemicals reveal a photograph, a structural view of the new pattern of relationships that have been consolidated at the interface between the state and markets: the type of public positions and resources that are prized by the business bar, and also the type of companies and law firms that hire from the public sector, and the sectoral pathways followed by recruits. As we are able to map out the total social space in which these crossovers move, on either side of the public-private border, it is possible to sketch the field of intermediation and influence that has developed over the course of two decades of the state’s neoliberalization.
When Political and Administrative Elites Don the Robe
First and foremost, it is necessary to procure the methodological tools capable of describing this pantouflage phenomenon. Classically, political science has examined connections between society and political elites, either through the prism of pathways into politics, or exit routes (pantouflage) at the very end of a public sector career.3 This traditional analysis in terms of entry and exit no longer suffices, however, to describe the multiple shapes and nonlinear trajectories of career moves, or the ambiguous and porous nature of the border between political and administrative spaces and professionals from the consulting industry, whether they be lawyers, lobbyists, bankers, or other. A politically centered view that sees politics as the coronation and endpoint is no longer properly focused, when a stint in a ministry or regulatory agency is often just a step along the way in careers that accumulate and combine different professional, corporate, government credentials. Likewise, the flow between the legal profession and politics is no longer a one-way street; far from it, as the direction of movement we now observe is more frequently from politics to the bar. Last, this vision masks the fact that there is now a large number of intermediate and multiple positions across the fields of law, government, and politics, making it impossible to reason simply in terms of point of departure and point of arrival.4 Furthermore, the lines delimiting the top echelons of government administration, and of the political profession, are now uncertain. Fixed-term contracts have proliferated on the fringes of the civil service, particularly in regulatory agencies, cabinet offices, and public entities, while semi- and preprofessional positions are increasingly appearing in the margins of the political personnel, as local elected officials, their staff, and parliamentary assistants.5 On top of this is the fact that the title of lawyer permits a large variety of types of practice (status of retiree with pension, honoraria, temporary omission from the bar, bar registration with occasional practice, part-time activity, etc.) that make it possible to combine the activity with other positions (law faculty, Parliament, expert committees, think tanks, etc.). In these circumstances, it is not only the move from one sector to the other that interests us, but also the circulation, back and forth, and cumulative positions and functions throughout a career.
Following this analytical framework, we have attempted to trace the professional trajectory of all individuals who started in the public sector (temporary public agent, high-level civil servant, minister or member of Parliament) before joining the bar in Paris or the Hauts-de-Seine—the latter covering the business district of La Défense, just outside of Paris, where most large French companies have their headquarters. Empirically speaking, the inquiry was far from easy as there existed no established list of these pantouflages. It soon became evident that, beyond the usual names of a handful of prominent politicians, most of the crossovers concerned high civil servants whose coming to the business bar had drawn very little attention. It therefore required lengthy investigations into a large variety of sources that may incidentally refer to these pantouflages and allow us to trace professional trajectories: specialized publications (Lettre des jurists d’affaires, Décideurs magazine, etc.) and blogs (Legal 500, Chambers, etc.), law firms’ websites, Who’s Who, directories (Annuaire de l’ordre du barreau de Paris, Annuaire de l’ENA, etc.), and so forth. This enabled us to identify 217 individuals who have taken this pathway since 1991. While this number may seem limited, all the evidence leads us to think that it represents just a small part of the flow circulating around and through the business bar.6 It does not include either the more traditional stream of “lawyers who go into politics,” or “lawyers who go into administration,” whose numbers are growing in regulatory agencies. Likewise, as we have left out large regional bar associations such as Bordeaux, Lille, Marseille, and Lyon, local flows linked to markets in local public authorities have undoubtedly escaped our attention. Neither does our sample cover circulation at intermediate levels of state employment, for instance tax inspectors who are moving in considerable numbers to firms specialized in tax law, but who rarely draw the attention of the specialized press, and whose mobility is for the most part invisible.7 Despite these gaps in the overall count, we observe that this new crossover path has become increasingly significant over the past twenty-five years.
Crossing Over: A Chronicle
There have long been special pathways that were supposed to facilitate transfers from the state grands corps to the legal profession. In particular, members of the Conseil d’État, of the Cour des comptes, and of the body of judicial magistrates have been exempted from the requirements of the bar exam and professional internship since June 1972 (see article 97, box 2). However, this option at first interested only a few mavericks. The first crossover in our sample is a member of the Conseil d’État who at age 38 joined the Gide firm in 1979, after having been chief of staff (directeur de cabinet) for the industry minister. This itinerary is a singular one, in that the person already possessed professional law certification and went back to his original civil service corps as early as 1983. The few other passages in the bar were generally due to a poor class ranking at ENA,8 earlier studies at law school, or familial ties to the profession (succession in a family firm). The only long-standing and solid chain that we have found is tax inspectors, who have regularly and for a long time joined fiscal law firms. In 1972, an equivalency was established between the École nationale des finances publiques (ENFIP, the state vocational school training tax inspectors) degree and a master’s degree in law, thereby opening up a bridge allowing ENI graduates to migrate to the legal profession. In fact, in a context of near state monopoly on fiscal expertise, the competence of former ENFIP students was highly sought after by consulting firms such as Fidal and Francis Lefebvre, which began to regularly pay their passage through the revolving door, thus opening the gates for a flow that has not stopped since.
The 1990 merger between the avocats and the conseils juridiques dramatically changed this rather stable scenario.9 A decree of November 27, 1991 (see box 2), adopted in the wake of the merger of the professions of lawyer and legal adviser, considerably widened the dispensatory pathway allowing civil servants to join the bar, thereby taking on the name of “bridge decree” (décret passerelle).
BOX 2. / Excerpts from the so-called “bridge decree” allowing for exemptions from the bar exam and training sessions in the access to the legal profession (November 27, 1991)
Art. 97: Are exempted from the degree requirements, from theoretical and practical training requirements, from the bar exam and internship:
(1) Members and former members of the Conseil d’État, magistrates and former magistrates of the administrative courts and administrative courts of appeal.
(2) Magistrates and former magistrates of the Cour des comptes, regional courts of accounts, and territorial chambers of accounts in French Polynesia and New Caledonia.
(4) University professors charged with teaching juridical subjects.
(5) Lawyers before the Conseil d’État and the Cour de cassation.
(6) Advocates before appellate courts.
(7) Former lawyers registered with a French bar association and former legal advisers.
Art. 98: Are exempted from the requirements of theoretical and practical training and bar exam:
(1) Notaries, bailiffs, court-appointed administrators and mandataries for liquidation of companies, former court-appointed overseers and administrators, industrial property counselors, and former patent and invention counselors who have practiced in this capacity for at least five years.
(2) Associate professors, adjuncts, and teaching assistants who have a doctoral degree in law, economics, or management, and five years’ experience in teaching law in their academic capacity in training and research bodies.
(3) In-house legal counsel and company lawyers with at least eight years’ professional experience in the legal department of one or more companies.
(4) Top civil servants and former civil servants, or persons assimilated into this category, who have practiced legal activities in this capacity for a period of at least eight years in a government administration, public service unit, or international organization.
(5) Legal counselors attached for at least eight years to the legal units of a trade union or labor organization.
Persons listed in (3), (4), and (5) can qualify for exemption on the basis of different occupations listed above so long as the total cumulative period of these activities is at least eight years.
This decree made it possible for top “civil servants and former civil servants” to be exempted from the bar exam and internship provided they could prove eight years of “legal activity” in their previous professional positions. The text indicated however that applicants needed to have a law degree and to show eight years of juridical activities in their civil service capacity (see article 98.4, box 2). Eager to highlight the new attractions of the legal profession and its openness to new profiles and backgrounds, the Paris Bar Council provided an extensive interpretation of the decree. First, members of Parliament and ministers were considered as part of the category of top civil servants.10 Second, their years as MP or minister were counted as “legal activity” for the eight years’ requirement. Third, the “law degree” requirement was understood as also including political science and economics degrees.11 Thereby, the initially narrow bridge turned into a large pathway, thereby offering unprecedented opportunities for members of political and administrative elites to move into a bar whose business dynamics was rapidly increasing.
The new professional prospects opened by the 1990 merger of the avocats and conseils juridiques, as well as the markets that were emerging in the fields of competition law, fiscal law, and privatizations, indeed attracted early moves of civil servants to the legal profession. The pantouflages movement steadily grew, from 14 individuals over the period 1979–1990; to 63 for 1991–2001, then 103 for 2002–2010—an average of 6 crossovers per year in the 1990s, and 10 in the first decade of the twenty-first century. The five years of the presidency of Nicolas Sarkozy (2007–2012) have a special place in this set. With the election of Sarkozy, who had been trained as a lawyer in the 1980s under a mentorship of a key figure of the Paris business bar, and had founded his own firm in 1987,12 came a sharp upturn in pantouflages, with nearly one-third of the movements in the database (74 out of 217). This observation confirms studies in political science that underscore the unprecedented high rate of migration to the private sector of Sarkozy’s staff and entourage, especially individuals leaving ministerial cabinet offices, and in particular members of the grands corps (43 percent of the latter moved to the private sector).13 This phenomenon must also be seen in the light of the “return” of lawyers to the executive branch as Sarkozy rose to power, with four minister-lawyers (out of 32) in the first Villepin government (2005) and eight (out of 40) in the second Fillon government (2010). The leadership of the bar association unanimously lauded this renewed interest for lawyers among politics and government elites. Several presidents of the Paris Bar Council spoke enthusiastically of these new ties with the political class. One leader, Yves Repiquet, himself a business lawyer, even wrote of the République des avocats, briefly resuscitating this prototypical figure of legitimacy that recalls the golden age of the Third Republic, and rejoiced that a “lawyer is back at the head of the State” to carry the torch previously held by Thiers, Grévy, Loubet, Lallières, Millerand, Doumergue, Auriol, Coty, and Mitterrand.14 Crowning this period, an amendment to the 1991 “bridge decree” was introduced in the very last weeks of Nicolas Sarkozy’s presidential term. Given the likelihood of defeat of the latter, pressure was mounting in the entourage of the prime minister and president to further facilitate pantouflages into the Paris business bar. The amendment grants the benefit of the dispensatory pathway to admission to the bar to anybody who can attest to “at least eight years of exercise of public responsibilities [and not of legal activity as previously required] that led them to participate directly in drafting legislation.” This opened the door for crossover to all former ministers, members of Parliament, and important local elected officials, as long as they had accumulated eight years of experience in one or another of these roles. The dispensation was also extended to parliamentary assistants with eight years in this function.15 The widening of the scope of these bar exam exemptions that secured the full convertibility of political and administrative experience in legal credentials was such that important parts of the legal profession protested, fearing for the reputation and the ethics standards of the profession.
Source: authors. “Crossovers” biographical database.
Note: “Ante” refers to the whole period from 1979 to 1987. For ten individuals in the database the year of entry into the bar could not be determined.
Even though the “Sarkozy moment” was a singular high point, it is consistent with the growing crossover movement. This movement continued apace after the election of François Hollande, with twenty-six crossovers in 2012–2014, a much higher rate than the average for the twenty-five years covered here. This attests to the consolidation of this new revolving door.
Neoliberal Revolving Doors
As the number of pantouflages to the bar grew steadily over a quarter of a century, the phenomenon spread to a progressively wider segment of politics and government administration. Initially confined to fiscal matters, other fields of law were involved as new sectors were affected by the neoliberal shift of the state from the powerful rise of competition policy (1986 government order on competition, new economic regulations legislation in 2001, modernization of the economy act in 2008) to reforms of public procurement (legislation on public-private partnerships in 2004 and 2008), public holdings and participations, and so on. Each wave of liberalization and strengthening of the regulatory state was met by a symmetrical interest of law firms for the corresponding segments of the state, leading to a progressive consolidation of the crossover movement and its diversification.
It was initially in fiscal matters that a small number of énarques tried out this new revolving door. Judging by articles in the professional press at the time, certain of these crossovers appear to signal a shift in the scope of possible transfer options for ENA graduates. In 1991 the former director general of the taxation office, France’s highest tax civil servant, moved directly to head Bureau Francis Lefebvre, a historical fiscal consulting firm. At nearly the same time, a former deputy director of the fiscal legislation department (in charge of drafting tax laws at the ministry of economy) joined Arthur Andersen as a partner. The transfer chain of tax inspectors was already solidly in place for these firms, but these new recruits from the very top of the fiscal administration blazed a new trail that would be heavily used in later years. However, top civil servants from many other sectors would soon follow. Experts in the field of competition policy with the hiring of a former member of EU competition directorate general by the Paris branch of White & Case in 1990; experts in public procurement, such as one member of the Cour des comptes who moved to Gide in 1990; specialists in equity and securities operations such as one magistrate, former director of the legal department at the financial market regulatory authority, who joined Darrois Villey in 1995, and so forth.
After these multiple sectoral niches corresponding to law domains reputed to be highly technical (tax law, public procurement, competition law), in the mid-1990s came crossovers from central government structures (secretariat general of the government or of the presidency, ministries’ chiefs of staff, etc.) revealing that the field of “public affairs” and “influence” was becoming a new breeding ground for pantouflages. Thus, a new type of entrant, less specialists than mandarins of the French state, came to the bar. Without claim to specific sectoral expertise, sometimes without any legal credentials at all, these new entrants could bank on their capacity to wield influence and on their knowledge of public affairs. The arrival of Jean-Pierre Jouyet in 1995 and of Hubert Védrine in 1996, from their respective positions of cabinet director to the president of the European Commission and of secretary general of the presidency in France, are emblematic. These newcomers were neither business developers who brought new clients, nor sectoral experts, but they could demonstrate unique closeness with the central spaces of political and administrative power in Paris as well as in Brussels.
As the crossover movement extended beyond specialized legal fields to the sector of influence and public affairs, politicians, also often from the ranks of the grands corps, plunged into the breach. In the bar, they could find a fallback position after an electoral defeat, and from these temporary positions eventually embark on a new career. As early as the 1980s, a few public figures ventured into the legal profession as a comfortable exit at the end of a career; for instance Michel Aurillac, a former minister who had been in charge of dealing with France’s former colonies at the so-called ministère de la coopération, was admitted to the bar in 1989 and worked on African cases.16 But it was not until the mid-1990s that the bar became the new waiting position or conversion space for the political elite.
As a preliminary assessment of the political leanings of the individuals surveyed, we constructed a left/right political indicator on the basis of electoral office and of the political color of the national governments and local executive offices in which the pantoufleurs held cabinet functions.17 Interestingly enough, while no significant difference appears between center-left and center-right parties in this regard, it is the left that first opened the pathway. After the stinging defeat of the Socialist Party in the 1993 legislative elections, several figureheads of the party joined the legal profession. This was the case for socialist power couple Ségolène Royal, former minister for the environment (registered for the bar between 1994 and 1997) and François Hollande (registered for 1994 only),18 both of them énarques who briefly moved to the law firm of a close friend from the Socialist Party. Former minister of industry and future IMF managing director, Dominique Strauss-Kahn also became a business lawyer in 1994, when he founded the firm DSK Consultants.19 The stream of crossovers from politics would not soon dry up. Peaks correlated with elections came in 1992–1993, with 7 crossovers from the left-wing government out of 11 during this period, and then in 1997–1998, with 8 political crossovers, all from the right-wing government, out of 9 for the period. As the political winds shifted, and internal disgrace occurred or scandals erupted, more former ministers escaped whether from the right (e.g., former prime minister Dominique de Villepin) or the left (e.g., former prime minister Bernard Cazeneuve). Broadly speaking, the peaks in admission to the bar of former ministers and members of their staff typically occur just before or just after elections or internal disgrace in political parties. Whether fallback position after (or before) electoral defeat or springboard to a new career, these transfers to the business bar are part of a larger movement in which politicians penetrate other contiguous worlds (communication, think tanks, public affairs, consulting, etc.) that function as buffer zones between the squeeze and expansion of the accordion pleats of the political job market.20
Source: authors. “Crossovers” biographical database.
Truly enough, with the wave of political scandals that erupted in France from 2010 onward, with a succession of affairs (tax fraud, influence peddling, etc.) on the left as much as on the right, the pantouflages of public servants into the private sectors (and the related risk of conflict of interests) became a salient public issue. Investigative journalists, traditional segments of the Paris bar, as well as moral entrepreneurs from the political field started denouncing the connivance and confusion of roles between the political and administrative elites and the business bar, putting at risk the reputation of reserve and probity of the law firms involved in such recruitment, and so on. In some instances, politicians and law firms would rather shun a situation that is politically damaging for the former and commercially risky for the latter. After the French satirical newspaper le Canard enchainé revealed his parallel appointment as Gide partner and majority leader of the National Assembly, Jean-François Copé had to withdraw from his position in the law firm. Likewise, some members of Parliament now report in their income statement to the Haute Autorité pour la transparence de la vie publique, France’s agency in charge of the integrity and ethics of public officials, that they have asked to be struck from the bar “so as to preclude accusations of conflict of interest.”21 But while the publicizing of politicians’ pantouflages has illustrated the reversal of fortune that is always a risk, the bridges are solidly anchored between the top ranks of civil service and the legal profession. This movement has unceasingly expanded over the years and the lines of transfer are consolidated. Even at the height of debate about politicians donning the robes of lawyer, high-level pantouflages of the former director of the DGSE intelligence agency (France’s FBI) to the Franco-American firm Orrick Rambaud Martel, and the move of the second in command at the tax department (DGFIP) to Ernst & Young, were discussed only very briefly in the columns of the specialized press, showing how banal transfers from the top of the state administration had become.
Readers should not imagine that the passage of civil servants and politicians to the business bar is always easy, without problems or missteps. When they join the legal profession, the pantoufleurs must first comply with a set of professional rules and customs that differ from those of the central government administration. Admission to the bar requires a genuine professional retooling, and success hinges on rapid acclimation to the professional norms of big business law firms. The crossovers we interviewed describe a phenomenon of culture shock. The most senior of them mention, with some delectation, the cases of those who were never able to adapt to the new constraints, and eventually left the profession, or have a marginal practice: “he doesn’t like his job, he’s not a lawyer. His fiscal reasoning is very interesting, but he doesn’t see clients” (interview 8, man, ENA graduate, tax law). Specialized journalists also like to chronicle stories such as the one of this “Paris firm, [where] there are still painful memories of a politician (albeit of second order) that the firm had recruited—at considerable cost—and then had all sorts of trouble getting rid of, when his results proved to be inadequate.”22 Some crossover attempts have been spectacular failures, such as that of Hervé de Charette who was admitted to the bar in 2001, a few years after having served as Chirac foreign affairs minister from 1995 to 1997. He was sentenced to reimburse 200,000 euros in fees to a former client, Otor, who accused him of failing “to draft a single brief or letter to a judge, and who attended no hearing or court session” in the course of litigation with the second-ranking producer of cardboard boxes in France.23
The difficulties most frequently mentioned by crossovers are the liberal nature of the profession—“client relations,” and the specific time frame of the trade—and the sense of loss of personal power. “What we lack the most, as énarques and when you’ve been in public service,” confides this business lawyer from the Conseil d’État, “is often the relationship with the client. How to talk to him, give him a sense of security, present things positively, never say ‘your thing is impossible,’ but rather ‘your case is not simple, pretty complicated, I can’t promise success but I will do all I can….’ That’s the thing, an énarque, he shows up and says: ‘this is a shambles.’ … The second thing is the financial relationship with the client. How much to bill, how to submit the bill, when to bill … Myself, I always … I can’t manage to write up a bill, I don’t care about it” (interview 14, man, Conseil d’État, ENA graduate, public law). One of the first pantoufleurs emphasized his discovery of how differently this new profession worked compared to the rationale of his public service job: “I didn’t bring any clientele, and I hadn’t at all grasped the commercial aspects. At the Conseil d’État, things are simple, you have a captive market, on the contrary you have to push back against solicitations” (interview 12, man, Conseil d’État, arbitration and public law). “Whatever the situation, the client is brought to you, and cannot set you up in competition with the customs administration or the defense ministry” (interview 10, man, ENI graduate, tax law). A former judiciary magistrate who migrated to the Salans law firm says the same thing: “In my first meetings with clients, I was ill at ease, especially when it came to talking about fees. I still have a hard time with this merchant relationship … I felt like I was on the other side of the courtroom rail. I was emotional. For a fraction of a second my head spun in an identity whirl. I was on the verge of passing to the other side of the table, to the side where I was so accustomed to sitting as magistrate.”24 In addition to the commercial stance that goes along with the imperative of always being at the client’s service, the pantoufleurs mention the pressure of the time sheet, and temporal organization that is less foreseeable than in the administration, and which demands constant availability. “What is exhausting is the fact that you never stop. The client, when he needs something, he has to find his lawyer, and if you’re on vacation, it doesn’t matter, you can still manage the conference call. You never let go of your Blackberry, and there is never an instant when you are not connected, when you are not thinking about the firm, its clients, about such and such a case. And that is what is exhausting, the fact that you can never take a break” (interview 17, man, ENA graduate, competition law). Another person adds: “Culture shock, it’s true. Not in terms of volume of work, I used to work Saturdays before. At the Conseil d’État, one works more and more, the myth of the English club where one goes to work from time to time, it doesn’t work like that…. What is true, however, is that there is a difference from the point of view of stress and the predictability of the work, in a law firm you don’t know in the morning what might hit you during the day…. It’s Friday evening for Monday morning” (interview 9, man, Conseil d’État, public law of business).
Many point out a sudden loss of authority: “It’s very frustrating not to have power. In the administration, I banged on the table, and I could say ‘That’s it now, I’ve decided.’ You have a power of influence, not of action. And that’s frustrating” (interview 14, man, Conseil d’État, public law of business). Likewise, the nonhierarchical relationships with other associates, or inversely the subordinate position vis-à-vis the American or English headquarters of the firm. The discovery of this work dynamic is expressed first of all as a contrast with the administration, that may be positive or negative. First comes the observation of a different spirit or ethos, underscoring the common culture shared among graduates of certain state vocational schools or grands corps: “The reference framework is not at all the same between the administration and a law firm. There is an enormous advantage in the administration, which is that everybody went to the same school, ENFIP (state’s vocational school for tax inspectors), so ab initio there is a sort of shared company culture…. You know, when you meet someone, when you recruit a young staffer, depending on the remarks and comments made about him and the interviews you have with him, you’ve immediately got a bead on him…. In the private sector, the game is reversed, here there are staff members from all sorts of universities, there are those who’ve been to business school and then did a graduate degree in tax law, there are economists…. And all that means that the culture is created by the subject matter, by the case, rather than on the basis of initial training” (interview 10, man, ENI graduate, tax law).
Despite the difficulties of conversion, a new path of pantouflage was nonetheless established. Structural elements certainly account for the success of this new pathway to the business bar. Among these is the widening income gap between the public elite and business lawyers over the past three decades. This growing disparity of remuneration can hardly be ignored. In our interviews, respondents often say that the prospect of earnings is naturally pleasant but not a determining factor in choice of career (which is more often presented as a question of personal accomplishment, and lack of challenge of the administrative environment). There is quite a lot of data, however, confirming that since the 1980s, the gap has doubled between the average salary of the top 1 percent best-paid civil servants and the corresponding segment in private firms.25 Today only 0.05 percent of employees in the state civil service (i.e., 1,200 people) attain the average salary of the top 1 percent in the private sector.26 These findings corroborate those of a report issued a decade earlier in 2004 that indicated that: “a director in the central administration earns on average 115,000 euros gross pay annually, three to four times less than high-level directors in the private sector.”27 The income statements of French public managers now published by the Haute Autorité pour la transparence de la vie publique illustrates this vividly. One example is Emmanuel Macron, whose salary was cut sixfold when he moved from managing associate at Banque Rothschild to the position of deputy secretary general at the Élysée Palace in 2012. Among lawyers an example is former majority leader Jean-François Copé who reported income of 313,703 euros for 2012, twice his salary as a member of Parliament. While it is always hard to evaluate the income of those in liberal professions, the average billings of partners in the top one hundred business law firms in France attain high levels, at 1,482,578 euros (2014). This figure is sharply lower for purely French firms, at 1,134,210 euros on average per partner, compared to an average 2,843,147 euros per partner in the Paris offices of American firms.28 Looking at the figures of the national statistical institute (Insee) on high income groups (the top percentile) in the nonsalaried private sector, the legal profession is strongly present. Lawyers and notaries make up 12 percent of the category of “very high incomes in the nonsalaried private sector,” representing 18,000 people with an average annual income of 243,467 euros.29
However, while the financial attractiveness of the business bar certainly increased the gap, it is not enough to account for the progressive consolidation of this pathway. One factor relates to internal transformations of the administration that have made circulation to and from top state’s positions much easier. The move to less strict statutory constraints at the summit of the state has indeed contributed to a more porous border between the public and the private. Nonstatutory positions have steadily augmented at the summit of the state ever since the 1980s:30 in 2012, there were 525 positions in 39 ministerial cabinets, 458 top state positions “at the discretion of the government” (ambassadors, prefects, departments’ directors, etc.),31 and 2,033 positions in regulatory agencies,32 all which were contractual and based on direct loyalty to the government or the agency’s president. The rapid development of these porous fringes of the state (where budgetary rules allow for higher wages) have made the departure to and the return from the private sector far easier.
In opening the way, one should also account for the role of a few pioneers who succeeded in becoming figureheads of the business bar and soon became role models as well as brokers for top civil servants aspiring to follow their tracks. By producing new representations of what was possible and feasible in the course of a political or administrative career, these examples encouraged younger individuals to follow in their turn this as yet less traveled road. The first generation of crossovers, for instance Jean-Patrice de La Laurencie in competition law, or Olivier Debouzy in public business law, both of them énarques, came to be recruiters in the ranks of the grands corps and the upper echelons of the civil service. They continued, beyond the limits of public administration, the practices of “administrative godfather,” “protectors at the center of clientelistic patronage mechanisms, in an economy of support provided and favors returned.”33 As they vaunted the merits of this new career to their comrades, they helped create veritable recruitment chains for a small number of firms.34
A New Power Elite?
The group of 217 pantoufleurs to the business bar, over two-thirds of whom are still members of the bar at the time of inquiry (December 2015), may at first glance seem not very significant in size compared to the large mass of lawyers in the two bar associations (Paris and Hauts-de-Seine), or to the ranks of the political and administrative elite during this period. There are indeed 27,500 lawyers in the Paris and Hauts-de-Seine bar associations, and about 200 partners changing law firms every year.35 The category of public managers (members of Parliament, ministers, ranking elected officials, mayors of large cities, managers of state-owned companies, cabinet staff, high-level civil servants) as enumerated by the Haute Autorité pour la transparence de la vie publique consists of over 10,000 people. This perspective is radically altered, however, when one considers the pivotal position in the field of power occupied by these crossovers to the private sector. This group includes 117 énarques; 89 former members of ministerial cabinets; 47 members of Parliament (former and current); 35 former ministers; 30 former directors and deputy directors in the central administration departments; 29 former cabinet chiefs of staff; 8 former presidents and secretaries general of political parties; 6 former secretaries general and deputy secretaries general of the office of the French presidency. Many of these have held more than one of these positions in the course of their career. The portrait gallery of these 217 crossovers is the description of an elite of the elite.
An Elite of the Elite
Let us start by sketching a typical or median profile of these crossovers, as compared to their counterparts in the field of politics, government, and business bar. This group possesses a distinctive set of features. First and foremost, it is a very masculine set (87 percent men), much more so than top civil servants, politicians, and partners in the business bar—who are themselves already a very unbalanced professional milieu.36 This confirms research showing that top civil service women are less likely to cross over to the private sector, and suggests a new glass ceiling in the phenomenon.37 It will come as no surprise that those who cross over to the private sector have impressive academic credentials.38 A degree from Sciences Po is the best ticket for access to these border spaces: two-thirds of crossovers attended one of the nine Sciences Po institutes (eight of which are outside of Paris), and almost all of them attended Sciences Po Paris, as opposed to just 5.5 percent who went to elite business schools and 4.6 percent who have university degrees in economics. The Sciences Po degree also often comes with a law degree: 53 percent of Sciences Po Paris graduates have this double qualification. This configuration harks back to an earlier time, when law remained marginal at Sciences Po Paris and studies at one of the Paris law schools was considered a necessary complement. Yet others, mostly among the younger cohorts, have only been to Sciences Po Paris: “I did law at Sciences Po the way everyone did law at Sciences Po, that is I had marks of 19 or 20 [out of 20] in constitutional law and administrative law, and then 3 or 4 in penal, civil law, because those were not subjects studied at Sciences Po. And overall, we passed. But I can’t say I really studied law” (interview 14, man, Conseil d’État, public law of business). On the whole, whether they have combined law schools and Sciences Po degrees or not, their academic training situates them at a good distance from the poles of business or engineering schools.
This academic training set a track leading a majority of the sample group to the core of the state governing elite whether it is by virtue of succeeding the highly selective exam to enter the École nationale d’administration, as is the case for more than half of them (53 percent), or because they were called upon to join a minister’s cabinet staff, often considered a sort of “second ENA” further validating one’s credentials as an experienced policy maker (49 percent).39
Another defining element of this group of pantoufleurs lies in its being relatively young on average, in contrast to the classic image of an end-of-career pantouflage moving to the private sector just a few years before or after retirement from public service. Age of admittance to bar ranges from 25 to 78 years of age, but in most cases the applicants admitted are under 50. While in the Fifth French Republic, pantouflage has traditionally been an end-of-career move, relatively few cases correspond to this model here. One instance is prefects—11 joined the bar after the age of 60. To be sure, joining the ranks of the liberal professions is a convenient way to bypass retirement: “One of the advantages is that as a lawyer you can go beyond the retirement age and continue to earn a good living” (interview 12, man, ENA, arbitration and public law of business). The benefits are nonnegligible for high-level civil servants, whose pension calculation excludes bonuses, meaning that their purchasing power falls considerably when their administrative career comes to an end.
But this new form of pantouflage is taken by younger and younger crossovers. The average crossover age is 47; in all, 59 percent of the individuals in the sample joined the business bar before they were 50, and nearly one-third (29 percent) even before they were 40. This observation confirms trends noted in other research on the grands corps.40 Typically, the person who crosses over to the bar, a move that is at once “conversion and wager,” is “a man in between two ages, no longer all that young but not yet well established in his career.”41 For high-level civil servants, this is a period when they are already embarked on an administrative career that is sometimes beginning to lose its luster, and for which there seem to be few opportunities for advancement in terms of salary or interesting position. “At the Conseil d’État, I knew that I would automatically become chamber’s president in the coming years,42 but that didn’t particularly appeal to me, because I felt I was too young…. I really like the Conseil d’État, and I’ll say right off the bat that I count on returning…. But I figured that at my age, in a position where I would be doing the same thing for practically 20 years, in the same premises, … [becoming a lawyer] came from the idea of doing something else before coming back” (interview 14, man, Conseil d’État, public law of business). “The problem with ENA,” says another crossover, “is that it’s great at the beginning, it’s very interesting from the start, but later on it gets boring…. What do you do afterwards?” (interview 8, man, ENA graduate, tax law).
Public Springboards and Private Fallback Positions
By construction, all the pantoufleurs in our sample group began their career in state service, as a civil servant, in the parapublic sector or on a political staff. These positions do not lead equally to crossing over to the private sector, nor do they predispose one to the same career pathways, however. Four major springboards can be identified, correlated to different initial points of entry into the public sector. While statistically important, the springboard of legal positions is relatively limited (32.5 percent of the pantoufleurs) given the fact that we are considering a population that would later move to the business bar. Interestingly, magistrates in the judiciary, who specialize in civil and criminal matters, are marginal in this subgroup (6.5 percent out of the 32.5 percent),43 when compared to professionals in administrative law drawn from the Conseil d’État, lower administrative courts, and legal affairs positions in the central administration (26 percent).
Second is the economics springboard used by those who started out in the ministry of the economy, the public banking sector, or in regulatory agencies (18 percent of crossovers). A politics springboard also appears for 13.5 percent of the pantoufleurs, represented by those who entered the public sphere in political positions, whether as elected officials or as a member of their staff (parliamentary assistants, local executive advisers, etc.). Last comes what could be called the “regal” springboard of ministries exercising central state prerogatives (interior, defense, and foreign affairs) in which 11 percent of crossovers learned the administrative ropes. This allows us to map out the specific segments of the state that have established stable bridges with the business bar—a map that goes well beyond the remits of law positions. Symmetrically, it brings to light the institutions and profiles that remain relatively marginal in this circuit such as the two other grands corps (Inspection des finances and to a lesser extent the Cour des comptes)—not so much because they are immune from these circulations but rather because they are part of other circuits of revolving doors, notably toward banks, insurance companies, and big corporations.44
Now let’s take a look at the fallback positions that pantoufleurs were able to find in the legal profession. In terms of the cartography of Paris law firms, crossovers landed in a strictly limited zone of the bar. One hundred forty firms were involved for 225 transfers (some pantoufleurs moved to several firms in the course of their careers), which represent only a small fraction of active law firms in Paris and the Hauts-de-Seine department. The fraction of the bar concerned can be also traced through the characteristics of these firms. Some crossovers created their own one-person firms to develop their own clientele as solo practitioners (close to 15 percent of crossovers). But they are certainly marginal cases compared to the vast majority who joined medium or large law firms; more than 40 percent of crossovers transfer to firms numbering between forty and one hundred lawyers.
The majority of the crossovers head to large firms in the Paris business bar. On the basis of the ranking of the 50 top firms published yearly by a specialized magazine, 40 of these firms were the destination of at least one crossover during the period of our study.45 Similarly, the 20 or so Paris firms that received more than four crossovers are among the biggest business law firms in Paris. Among them, one finds August & Debouzy (18) and Gide (12), the all-round champions in the “poaching” of high-level civil servants and politicians. While Anglo-American law firms are a frequent destination—close to one-third of crossovers—including firms such as Landwell, Day Jones, Allen & Overy, Clifford Chance, Bird & Bird, which regularly receive members of the political and administrative elite, one can still identify a preference for French-owned law firms. The five firms that take in the most crossovers are all members of the French business bar, and they aim to compete with the Paris offices of the major British and American firms.
Interestingly, law firms have made a special place for the pantoufleurs in their organization. Although few join as staff lawyers (collaborateurs) who are the rank and file of business law firms, they do not necessarily become partners, thereby taking direct responsibility (and risk) in the commercial success of the enterprise and its management strategy; this is the case for fewer than half of crossovers (80 out of 174 positions we were able to determine). The destination firms have proved very creative in allowing for all sorts of “à la carte” practice for prestigious figures without requiring them to either participate in board decisions or capital investment (these are nonequity partners). Likewise, they have been more than willing to accommodate short-term or even intermittent passages. Many neolawyers are initially positioned outside the hierarchical structure of the firms, meaning that they do not have to be measured and evaluated by the same metrics (billings, clients) as their new colleagues. This situation is most often termed a position of counsel, for one-fourth of crossovers, and sometimes by other even more ambiguous denominations. Some crossovers are simply “affiliated” or “domiciled” in a firm, without formally practicing law there—for example, former Élysée secretary general and foreign affairs minister Hubert Védrine, who has been given an office at Gide without any formal position in the organigram. Some others, however, are given executive responsibilities as heads for the public law, regulatory, or fiscal poles of the business law firms (17 cases). But the pantoufleurs rarely get to act as managing partner, a position which is de facto reserved for professional lawyers. As a sign of their ad hoc status in the bar, none of them has taken part in the profession’s representative politics, notably in the elections for Council of the Order of the Paris bar.
What this brief portrayal of the pantoufleurs and their trajectory in the bar has shown is how circumscribed the public-private circulation is, thereby contradicting the idea of a broad nondifferentiation between the two. There is certainly no general osmosis between the business bar and political and administrative spaces. Rather, what can be seen is a set of properties that predispose to mobility: male gender, law degree or education in a political science institute or ENA, a stint in a ministerial cabinet, membership in a party of government. But also, more broadly, the outlines of a circuit of circulation that connects specific segments of the state specialized in law, economics, and public affairs, to sectors of the legal profession.
Mapping Out the Field of Public-Private Intermediation
Upon closer look, however, the group of pantoufleurs is not as homogeneous as it is often casually made out to be by the press. Media attention has focused on the most high-profile political figures, the de Villepin, Cazeneuve, and other Straus Kahns, and has too often put up a screen that masks the diverse profiles of those who cross from civil service to the legal profession. The crossover population group encompasses a broad range of profiles, from former secretaries general of the Élysée Palace and former ministers to members of the Conseil d’État and tax inspectors, not to mention the very different specializations they possess, covering competition law, fiscal matters, public-private partnerships, public affairs, and so on. More importantly, the crossover trajectories vary considerably in terms of career positions as well as in terms of level of specialization. What the study of the 217 trajectories reveals is that this stratification of the population is highly dependent on two variables: whether the pantoufleurs are ENA graduates or not, and whether they have political capital or not. Analyzing in these terms the variety of trajectories and roles taken reveals the division of labor that constitutes the underpinning of France’s regulatory state.
The Division of Regulatory Labor
Far from forming a homogeneous group, the crossovers have distinct profiles and career perspectives. More than half of them attended ENA (54 percent), and this is certainly the major dividing line within this set. This division can be seen most clearly from the viewpoint of academic baggage: the énarques have most often attended Sciences Po Paris as well, unlike those who are not ENA graduates, and who in 81 percent of cases have law school degrees. Furthermore, the ENA graduates who become lawyers, from the oldest (class of 1948) to the most recent (class of 2004), come from the most prestigious pathways for acceptance to the school. Nearly all of them matriculated at ENA via the more prestigious external entrance procedure (that is immediately after graduation: 88 percent of this group). Some had already attended other French grandes écoles such as the École normale supérieure (9.4 percent) or business schools (9 percent), thereby acquiring the “double degree” advantage that other research has described as specific to an “elite of the ENA.”46 This “elite of the elite” in terms of academic qualifications also holds for professional careers. The énarques who moved to the business bar have often come out ahead in the ranking set at the end of the ENA curriculum, and they frequently joined the state’s grands corps. This breaks down as 30 percent members of the Conseil d’État, 10 percent from the Cour des comptes, and 5 percent from the Inspection des finances, for a total of 45 percent of crossover énarques. By comparison, on average just 20 percent of ENA graduates are accepted into these grands corps upon leaving the school.47 If one expands this set to include the “quasi-grand corps” of top civil servants from the ministry of the economy and finances (22 percent), it is even clearer that the crossovers include an elite group of énarques. This is further confirmed by their administrative experience largely concentrated within the twin poles of the Conseil d’État and the ministry of economy. When considering their entire trajectory, it appears that 27 percent of crossovers have occupied a position at the ministry of economy, and 24 percent at the Conseil d’État (these sets in part overlap, as some crossovers did stints at both institutions).
The special status of crossover énarques is confirmed by the fact that they are more likely to be found in ministerial cabinets (59 percent compared to 36 percent for non-énarques), stay there longer, and in half of cases occupy more than one cabinet post in the course of their career.48 Énarques and non-énarques frequently cross paths in ministerial cabinet offices. But they do not mingle, for the former tend to have executive positions, while the latter are often technical advisers or task officers with political assignments. Of 71 énarque crossovers who have held cabinet positions, 30 were chief of staff or deputy chief of staff in a ministerial cabinet, or secretary general or deputy secretary general of the presidency at the Élysée Palace.
Observing the total trajectory of these two subsets of crossovers, one can see a differentiated geography of circulation: the key points of passage for énarque crossovers form a tightly coherent configuration of executive staff offices in ministerial cabinets, the Conseil d’État, the ministry of the economy and finances, and to a lesser extent the regal domains of the state (defense, interior, foreign affairs). Inversely, non-énarques follow more varied itineraries, some political in nature, others more technical, often in regulatory agencies or government legal departments.
A second line of division is traced within the crossover group, according to their degree of proximity to the field of politics. Two types of itineraries are seen: those directly connected to the political job market, including elected officials and political staffers, and the other defined by accumulation of bureaucratic and technical capital. On the one hand, former ministers and members of Parliament make up 27.7 percent of crossovers (11 percent have successively been MP and minister); and on the other hand, the remaining two-thirds of crossovers have never been in political positions (66.3 percent). The political pole is dominated by non–ENA graduates, proportionally more numerous: while only 14.5 percent of crossover énarques are former ministers or MPs, this figure is significantly higher among non-énarques, 34 percent of whom are former deputies or senators. The administrative pole is made up of those who are more distant from the political elite: 31.3 percent of crossovers have never held elective office, nor a position in a ministerial cabinet or on a political staff. This is a group of public policy specialists, spanning fiscal matters, public procurement, competition policy and securities, and dealing with regulated sectors (telecommunications, transportation, energy, etc.) and strategic policies (defense, international contracts, etc.). Whether they are graduates of ENA or not, these administrators tend to emphasize their professional experience and technical expertise.
This two-pronged division defines the structure and hierarchy of the crossover group, by academic background (ENA graduate or not) and political capital (work in politics or not). These two variables mark a strong internal differentiation within the group, depending on their training, the posts they have held in government, their points of passage into the private sector, and the positions that they can legitimately expect to occupy in the private sector, and in law firms in particular. These variables configure the possibilities and probabilities for the mobility of crossovers, and define classes of trajectories that can be summarized in four ideal types representing a variable combination of resources and forms of legitimacy. None of these exists in a pure state, of course, nor should they be seen as representations of reality; rather they form a stylized picture of the most salient differences and polarities within the group of pantoufleurs (in terms of training and professional trajectory).
Reading table 6 from the upper right, where political and bureaucratic capital are combined and added up, the highest ranked group is the “Mandarins,” a term used to designate top-ranking civil servants who come mostly from the state’s grands corps and have had close connections to members of the government. By virtue of their position in the central spaces of state power—for example, ministerial cabinets, secretariat general of the government, secretariat general of the presidency, and so forth—these individuals incarnate the politicoadministrative elite. Closely connected to the regimen of alternating parties and the spoils system that goes with it at the highest level of the state, they generally stay only a short time in the bar, in the course of careers characterized by great mobility and stints in France’s largest corporations. Armed with generalist and transversal skills and competence, they are naturally found on the public affairs market. Their experience at the top of government endows them with prestige and a reputation that leads them directly to extrahierarchical positions in cabinets that are better suited to their status and to the sensitive matters that they will follow. This is the case of Jean-Pierre Jouyet, a member of the Inspection des finances grand corps who briefly joined Jeantet law firm (1995–1997), after having served as deputy cabinet director to the president of the European Commission, Jacques Delors, and before going on to become successively president of the Autorité des marchés financiers (France’s finance regulator), secretary of state for European affairs, director of the Treasury, secretary general of the presidency during the term of François Hollande, and now France’s ambassador in London.
Alongside this state nobility, there is the “Regulators” group, made up of ENA graduates who have held directorial positions in the administration of economic or technical ministries, or in agencies, without ever having taken a directly political position or belonged to a political entourage for any length of time. These top civil servants have exercised the most central functions in the regulatory state, whether as executive public officers (ministry of the economy, and agencies), as judges (Conseil d’État, judiciary) or as members of the executive staff offices (cabinet chief of staff, etc.). At the end of their public careers, they have accumulated in-depth knowledge of the administrative, legal, and judicial workings of the regulatory state. One example is the itinerary of Patrick Hubert, 1987 ENA graduate and former member of the Conseil d’État, who served as chief of staff to the ministry of justice and was nominated to be rapporteur général (chief investigator) to the competition authority, before joining the Clifford Chance firm in 2004, where he became a partner in 2007, working in the “Public law, environment and competition” department and frequently pleading before the Autorité de la concurrence.
The top part of table 6, either as “Regulators” or “Mandarins,” describes the directorial pole of the regulatory state. An énarque who was one of the most highly visible business lawyers until his untimely death gave an illustration in the ENA alumni review:
It was not just happenstance that so many énarques chose to become lawyers. Unlike normaliens [graduates of École normale supérieure], énarques are not intellectuals, and unlike polytechnicians [graduates of École Polytechnique engineering school], they do not identify with a network: they are men of power. The fact that they have spread into legal professions shows that power has shifted from States to corporations, and from armies to financiers and legal advisors. Énarques are the canary in the mine, alerting us to a change, that while it has not attracted much attention in France, is nonetheless real and significant.49
This citation can of course be classed as the semidescriptive, semiprophetic musings of a “convert,” but it clearly underscores the pivotal position occupied by this group in the state.
The singular features of these “men of power” are even more clearly revealed by comparison of the top of table 6 with the lower half, the non-énarques. First of all are the “Politicals” who have conducted their public career in the entourage of elected officials, in parliamentary assemblies or in government staff. Like former ministers of justice or the economy (as well as the related web of junior ministries in trade, small business, industry, budget, etc.) or former members of Parliament who sat on the finance or legislation committees, they are the actors of the political scene that surrounds the regulatory state. Their capital of political experience plus practical knowledge of the machinery of writing bills and producing administrative rules are qualities they can market. While in most instances it is very hard to precisely identify the tasks they are given in law firms, which are generally listed in vague categories of negotiation, arbitration, or mediation, these individuals constitute a considerable commercial asset for law firms, who readily publicize them: “If one of my foreign clients wants to invest in a particular area in France … I can ask [Georges Tron, a long-term MP] to get information from the government and find out whether it’s on the list of priorities. And then, as a member of the finances committee, he can inform us about the drafting of new legislation,” explains the managing partner of one law firm.50 Another lawyer describes the arrival at the firm of a Socialist Party member of Parliament in these terms: “he was on the National Assembly legislative committee for ten years, that’s a major asset,” he says. “But what interests us is his address book, we are not allowed to solicit clients in our profession. So, the personal contacts of an MP are essential.”51 As they have turned the business bar into a new holding space to wait out the low tides of the vagaries of elections, it is frequent that these political crossovers stay only a short time. They share with the mandarins their dependence on the political job market and its seesaw movement. But, lacking the bureaucratic capital held by the state nobility, their careers in law firms are often ephemeral, or rocky. This distinguishes them from the majority of crossovers, for whom this transition is often a permanent move.52 This is emphasized by a partner in a firm that took in a former minister: “Of course at the beginning he was enshrined in the glory of his status as former minister, and that makes some things possible, but ten years later, if he hasn’t really become a lawyer, it doesn’t work any more” (interview 22, man, partner, penal business law).
Last, there are the “Technicians” of the regulatory state, an eminently disparate group that covers a wide range of functions in state and state-related functions, from tax inspection in charge of controlling the largest firms to investigative functions in the wide set of regulatory agencies or courts, and legal functions in technical ministries (environment, health, etc.), and so forth. Taken as a whole, this part of the pantoufleurs group reveals another layer of the regulatory state, a technical stratum, and shows the new currency value of these oversight and investigative positions for large corporations and market intermediaries. These are often single-sector itineraries characterized by accumulation of a specific bureaucratic capital in areas ranging from taxation to public procurement, sectoral market regulation, and so on. These careers are less subject to shifting political winds, and unfold at an intermediate level of the administrative hierarchy. Professional transition to the bar is all the more durable in that these individuals do not have the political and social capital that would enable them to jump to other professional domains.
Despite their differences, these four typical profiles are ultimately facets of one and the same regulatory state. Together they form a picture of the division of labor in the work of regulation, tying public managers of economic departments to political professionals specialized in producing regulatory legislation, and likening the state nobility to technicians with expertise in the different poles of regulatory action.
Circuits of Public-Private Circulation
Mapping out the trajectories of pantoufleurs also makes it possible to draw the different sector-specific circuits of the regulatory state. Competition policy, public-private partnerships, fiscal law, securities and banking transactions, and so on, form as many pockets of circulation where Regulators and Mandarins, Politicals and Technicians cross paths and collaborate. While it may be useful for analytical purposes to distinguish these different sectoral circuits, they are in fact often intertwined; the individuals may slip from one domain to another as new bridges are created by successive waves of liberalization. This relative fuzziness is inherent in the very nature of the emerging public law of business (droit public des affaires), in which case files routinely cut across the habitual lines of legal specialization: “Here I have a file that involves securities law, financial law, corporate, settlements and redress, public and tax law—five disciplines! The file I worked on this morning spans social, corporate and public law, you see, it’s rare that I have a case…. In fiscal law one can work alone, in public law one must necessarily work with someone else” (interview 14, man, Conseil d’État, public law of business). In fact, crossovers often declare areas of specialization that are intentionally broad (“public law,” “arbitration,” etc.) or present a portfolio of expertise that calls upon a wide range of expertise (fiscal, competition, securities, economic intelligence, etc.). Still, while they may intermingle in practice, these sectoral circuits delineate specific pathways for converting public assets and experience into the private sector.
The long-standing fiscal circuit of public-private circulation has expanded considerably in the past two decades. More than one-fourth of the crossovers in our sample (27 percent) passed through this circuit at one time or another in their trajectory. As described above, the competence and skills of tax inspectors were sought by legal and fiscal consulting firms even before 1991, and these firms regularly paid the compensation due by inspectors who had not put in the statutory eight years of public service. At a time when specialized university degrees were very rare, the only place “where you learned fiscal law was in government tax centers and at Fiduciaire de France [an accounting firm], which right off the bat restricted the sources of recruitment for the private sector.”53 A number of veritable supply chains came into being, linking graduates of ENFIP (state professional school for tax inspectors) and today also énarques with experience at tax departments, to law firms and consultancies such as CMS Bureau Francis Lefebvre, or Ernst & Young avocats. Firms specialized in fiscal matters almost always have on their roster at least one former tax inspector or énarque with a fiscal background. Typically the paths of circulation in this fiscal pole connect political positions—such as special rapporteur of the budget in parliamentary assemblies or secretary of state for the budget, positions at the Direction générale des Finances publiques (DGFIP), the important department in charge of drafting fiscal legislation or controlling its implementation at the ministry of economy—to jobs in the tax departments of large companies and law firms.54
The trajectory of someone like Dominique Vuillemot illustrates the relationships established between these poles: born in 1954, a graduate of Sciences Po and of ENA (1980)—where he met François Hollande for whom he would organize expert committees during the 2012 presidential campaign. Vuillemot entered the ministry of the economy and finances upon graduation from ENA, and held the position of head of staff at DGFIP from 1986 to 1990. From this post, he “crossed over” in 1990, and joined the legal consulting firm Coopers & Lybrand, where he practiced for some ten years and published many technical works on fiscal matters in Europe. In 1999, he founded his own law firm specialized in fiscal law, and actively pursued the opportunities that the Question prioritaire de constitutionnalité has opened up for tax lawyers before the Conseil constitutionnel.
Also in the domain of traditional state prerogatives, the public procurement circuit flourished anew with the development of public-private partnerships (PPP) throughout the first decade of the twenty-first century. This circuit connects many positions and institutions: prefects, local elected officials, territorial civil servants, employees of the Grand Paris and La Défense (EPAD) infrastructure development corporations, project developers such as the Lyon–Turin train line, and executives in public works and energy infrastructure corporations, and so forth. While major PPP and public law teams in Paris firms are found in this circuit, niche firms are also involved, less visible, not necessarily based in Paris, but highly specialized. Once example is the case of Bruno Kern. With a master’s degree in private law from the University of Strasbourg and a graduate degree in political science from Sciences Po Paris, Bruno Kern began his career on the staff of Socialist Party elected officials and ministers, combining “ministerial cabinet and the position of elected official over a period of 13 years,” as stated on his firm’s website. After serving as parliamentary assistant to a Socialist Party senator, and technical adviser in various ministries, he became chief of staff at the ministry for “social affairs” (1991–1992), then at the ministry in charge of major infrastructure work (1992–1993), and ultimately legal counsel at the interministerial mission on major infrastructure (1993). When the conservative right returned to power, Kern left politics and became a lawyer, in charge of the “Public and environment law” department at the Arthur Andersen audit firm. Seven years later, in 2000, he founded his own firm, Bruno Kern et associés (BKA), which from the outset was positioned in the field of local government law, with three former high-level territorial civil servants on the roster. With a staff of some fifteen lawyers and employees, BKA has become a leading reference in law regarding local government authorities and is classed as excellent in its subfield of local government by the specialized blogs and magazines. BKA claims on its website that “600 public decision makers” have used its services, including “20 ministries, central government offices and public establishments,” but above all “11 regional governments, 30 departments, 60 intermunicipal authorities and 350 city governments.”
A competition circuit also gradually grew in importance, to the point that one-fourth of pantoufleurs have passed through it at some point of their career. The initial pillar of this pole was the development of a powerful corpus of EU competition law that has steadily gained in force as the energy, transportation, and telecommunications sectors have been liberalized.55 In the course of the period 2000–2010, this policy branched out into national poles with a European network of national competition authorities all put under the auspices of the EU competition directorate. This sectoral circuit of expertise connects the European Commission (its competition directorate and legal department of the Commission); the European Court of Justice (its clerks and judges); the French Autorité de la concurrence and the related web of sector-specific regulatory agencies in the field of energy (Commission de régulation de l’énergie—CRE), telecommunication (Autorité de régulation des communications électroniques et des postes—ARCEP), and transport (Autorité de regulation des activités ferroviaires—ARAF); and the government department in charge of implementing competition rules (DGCCRF); as well as lawyers in the EU law and competition departments of large Paris and Brussels law firms.
The career of Jean-Patrice de La Laurencie is a perfect illustration of this wide-ranging circuit of competition and regulatory expertise. Born in 1943, a graduate of Sciences Po Paris, matriculated at ENA in 1970, La Laurencie began his career at the permanent French delegation to the European Communities, before joining the competition department of the ministry of economy (1981–1983), then the cabinet of Jacques Delors when the latter became minister of the economy. As department head at the ministry’s competition unit, he worked on drafting the founding act of French competition regulation, the 1986 government order on “price deregulation and free competition.” In 1990, he was admitted to the bar and joined the American law firm Couderc Frères as a partner, where he created from scratch a competition department. Later, he worked in two other firms (White & Case, Norton Rose) before setting up as independent counsel.
Less consolidated, yet very lucrative, is the securities and financial affairs circuit that emerged through the successive waves of privatizations as well as with the increasing dependence of public entities on private capital markets. The main sites of expertise include the vast financial pole of the state (Caisse des dépôts et consignations, Banque public d’investissement, Agence des participations de l’État), EU financial institutions (the European Bank for Reconstruction and Development, the Eurogroup), specialized administrations (treasury office), banking regulatory authorities (Autorité des marchés financiers, Autorité du contrôle prudentiel), securities law departments in law firms, and the legal services of Paris large private banks and insurance companies (Lazard, CIC, among others).
The itinerary of Anne Maréchal is quite interesting in this respect. After studying EU law, she joined the competition policy department at the ministry of the economy in 1990. Promoted to the rank of civil administrator (top civil servant) after having passed through the ENA, she worked in the fiscal legislation department from 1993 to 1996, and then moved to the French securities exchange agency where she was the head of the market division from 1996 to 1999. “Poached” by August & Debouzy in 1999 where she headed the securities law department, she later held the same position at Herbert Smith and then at DLA Piper, where she was in charge of taking France’s multinational nuclear power company, Areva, public. Coming full circle, in 2015 she was brought back into public service as director of the legal department of the financial regulator, the Autorité des marchés financiers.
Last, we see also the emergence of a circuit that includes the regal domains of the state circuit spanning across numerous positions in foreign affairs and state security (20 percent of crossovers appear in this space). Here, one can find former ambassadors, leaders of major defense groups, members of the central administration at the defense and interior ministries, several former ministers of foreign affairs (Hubert Védrine, Hervé de Charrette, Dominique de Villepin) and of the interior (Claude Guéant, Bernard Cazeneuve, etc.), and members of their cabinets, who often engage in a variety of politically sensitive markets from international contracts (in particular African issues) to defense-related issues but also general experience in the broad domain of public affairs.
A good illustration of this type of itinerary is the career of Dominique De Combles De Nayves. Born in 1954, a graduate of Sciences Po Paris, he entered ENA in 1985 in the same class as Olivier Debouzy, and followed a similar career path. After stints in the economic affairs division at the foreign affairs ministry and in the cabinet of foreign affairs minister Claude Cheysson, he moved to the Cour des comptes (1986–1989), then to various posts in the ministry of international cooperation (mostly African issues), and from 1998 to 2001 headed the cabinet of the minister of defense. After serving as the French ambassador in Budapest, he was hired by his former classmate at August & Debouzy, where he worked from 2004 to 2014 (with an interruption of three years when he was secretary general at the Cour des comptes). This did not prevent him from working on a white paper on French foreign policy, or on the commission monitoring a reform of the ministry of foreign affairs. In 2014, he founded Dunaud, Clarenc, Combles & Associés with two other lawyers, where he specialized in defense and security, information and data technology, communications, nuclear power, energy.
This listing of circuits of public-private circulation connecting political and administrative spheres to the business bar is far from exhaustive. Further investigation should be carried out in technical domains, such as health care and pharmaceuticals, intellectual property, transport and environment, and others. Still, this initial list reveals a new cartography of the state, one that highlights the archipelago of political and administrative positions that have gained market currency with the neoliberal turn of public policies. It signals the many public-private hubs and related revolving doors that have prospered across the state in its relation to markets. When considered all together, these numerous leopard spots that have multiplied and solidified over the past two decades provide an unprecedented topographical survey of the social and professional underpinnings of the state regulatory, one that sits precisely across the public-private divide. This bird’s-eye outlook into the social structure of the regulatory state now calls for more fine-grained and qualitative analysis of the types of practices and worldviews that have consolidated within the remit of this field of public-private intermediation.
1.“Les fins de mois de Copé,” Le Canard enchaîné, September 26, 2007.
2.It is important to note that the word “pantouflage” bears a different meaning than revolving doors as it does not imply moves back and forth but rather a departure from the public sector. Indeed, when it was noticed that some of these individuals were actually coming back to the public sector, a new word was coined: retro-pantouflage.
3.See Dogan, “The Mandarins among the French Elites.”
4.Our statistical treatment of the sample codes the “last position before becoming a lawyer,” the “point of arrival in the legal profession,” as well as the different positions occupied during the professional trajectory. For more details, see appendix 1.
5.Didier Demazière and Patrick Le Lidec, Les mondes du travail politique (Rennes: Presses Universitaires de Rennes, 2014).
6.Although they are also civil servants, law professors who work with law firms have not been counted, nor movements within the private sector (from companies’ legal departments to law firms).
7.A quick survey shows that there is long-standing and steady circulation here. For the period studied, we identified eighty-four crossovers of tax inspectors, but this flow seems to have been much heavier, as the Commission de déontologie de la fonction publique (CDFP)—the committee in charge of controlling moves to the private sector—mentions twenty-seven requests submitted for the year 2000 alone. Commission de déontologie de la fonction publique, Rapport d’activité 2000 (Paris: La Documentation française, 2001).
8.The École nationale d’administration, the training school for French top civil servants, ranks students at the end of their two years of studies and internships according to their results. Only the very first in the ranking can access one of the state grands corps: see more details in appendix 2.
9.For a full narrative of this turning point, see Karpik, French Lawyers.
10.The prosecutor’s office can still appeal decisions by bars’ admission policy, but in point of fact has almost never used this option.
11.Mathilde Mathieu and Michael Hajdenberg, “Parlementaires-avocats: Le gouvernement est passé outre les réserves du conseil d’État,” Médiapart (blog), April 17, 2012, citing the cases of two former ministers (Jean Glavany and Frédéric Lefebvre) who did not have law degrees when they were admitted to the bar.
12.The career of Nicolas Sarkozy from his admission to the bar in 1983 is described in Michel Pinçon and Monique Pinçon-Charlot, Le Président des riches (Paris: Zone, 2010), 85–93.
13.Luc Rouban, “L’État à l’épreuve du libéralisme: Les entourages du pouvoir exécutif de 1974 à 2012,” Revue française d’administration publique 142 (2012): 487.
14.Yves Repiquet, “Un avocat à la tête de l’État,” Bulletin: Ordre des avocats du barreau de Paris 15 (May 15, 2007): 1.
15.While the dispensation of the bar exam for all those who had exercised eight years of “public responsibilities” was repealed by a revised decree on April 15, 2013, when François Hollande rose to power (although not without hesitation on the part of the government), the bridge option was maintained for parliamentary aides and assistants to deputies or senators.
16.Lettre des juristes d’affaires, April 16, 1990.
17.We gathered information on 140 of the 217 crossovers to obtain a rough picture of the effects of political change on the flow of transfers to the law profession (see figure 3).
18.Ségolène Royal, a graduate from the ENA and prominent figure of the Socialist Party, would later be presidential candidate for the Socialist Party in 2007.
19.Dominique Strauss-Kahn was drawn into the so-called MNEF scandal (named after a large students’ insurance fund) by reason of 600,000 francs in fees he received as lawyer representing the fund: “Le parquet fait enquêter sur les 600,000 francs versés à DSK par la MNEF quand il était avocat d’affaires,” Libération, December 9, 1988.
20.On the specificities of the political job market, see recent work by Demazière and Le Lidec, Les mondes du travail politique.
21.As indicated by Edouard Philippe in his statement of interests and assets submitted to the high authority for transparency in public life when he was a deputy in the National Assembly, 2014.
22.Lettre des juristes d’affaires, October 1, 1990.
23.“Les mésaventures d’Hervé de Charrette, avocat novice,” Le Monde, September 11, 2007.
24.Rémi Barousse, quoted in Perrin and Gaune, Parcours d’avocat(e)s, 24–25.
25.Marie-Christine Kessler, “L’évasion des membres du Conseil d’État vers le secteur privé,” in Le Droit administratif en question (Paris: Presses Universitaires de France, 1993), 122–38.
26.Eva Baradji, Dorothée Olivier, and Erwan Pouliquen, “L’encadrement supérieur et dirigeant dans les trois versants de la fonction publique,” Point Stat DGAFP, February 2015, 4.
27.Jean-Ludovic Silicani, La Rémunération au mérite des directeurs d’administration centrale: Mobiliser les directeurs pour conduire le changement (Paris: La Documentation française, 2004), 5.
28.See the survey by the professional magazine Décideurs: Stratégie finance droit, July–August 2014, 70–87.
29.Michel Amar, “Les très hauts salaires du secteur privé,” Insee Première 1288, April 2010.
30.On the extension of the scope of “discretionary appointments” in the administration, see Jacques Chevallier, “L’élite politico-administrative: Une interpénétration discutée,” Pouvoirs 80 (1997): 89–100.
31.As of December 31, 2012, according to Baradji, Olivier, and Pouliquen, “L’encadrement supérieur et dirigeant dans les trois versants de la fonction publique.”
32.René Dosière and Christian Vanneste, Rapport d’information sur les autorités administratives indépendantes: Rapport de l’Assemblée nationale no. 2925 (October 28, 2010).
33.Jean-Michel Eymeri-Douzans, “Les bons endroits, les bons amis, les bons moments,” in L’État, le droit, le politique: Mélanges en l’honneur de Jean-Claude Colliard (Paris: Dalloz, 2014), 7.
34.See the special issue of ENA Alumni magazine, ENA Mensuel 329 (2003) entitled “Lawyers: The New Challenges,” which lists many cases of crossovers.
35.The professional website DayOne has counted between 150 and 250 transfers of partners per year over the past decade in Paris. See DayOne, “Dix ans de mouvements d’avocats associés,” http://village-justice.com/.
36.The share of women partners in business law firms is one of the lowest in the profession. See “Femmes au barreau en 2013,” Bulletin de l’ordre des avocats du barreau de Paris, March 2013.
37.Referring to the Conseil d’État, Olivia Bui Xuan has noted that women in this grand corps are much less mobile than their male peers, and even more so with respect to mobility outside of the administrative sphere, with the effect that women tend to make up the permanent staff of the institution, justifying the epithet “vestales of French public law,” in Olivia Bui Xuan, Les Femmes au Conseil d’État (Paris: L’Harmattan, 2001), 179–81. See also, for a more recent survey, Luc Rouban, “L’accès des femmes aux postes dirigeants de l’État,” Revue française d’administration publique 145 (2013): 89–108.
38.Indeed, a master’s in law is required to qualify for the dispensatory procedure to enter the bar.
39.Luc Rouban, “Les énarques en cabinet (1984–1996),” Cahiers du Cevipof 17 (1997): 31.
40.A historical outlook is provided by Christophe Charle, “Le pantouflage en France (vers 1880–vers 1980),” Annales: Histoire, Sciences Sociales 42, no. 5 (1987): 1115‑37.
42.There are ten chambers (so-called sous-section) at the Conseil d’État.
43.On the most limited (albeit increasing) number of crossovers among judicial magistrates, see Anne Boigeol, “Les magistrats ‘hors les murs,’ ” Droit et société 44–45 (2000): 225–47.
44.Dudouet and Grémont, “Les grands patrons et l’État en France, 1981–2007.”
45.“Décideurs 100 des cabinets d’avocats,” Décideurs, July 16, 2014.
46.Jean-Michel Eymeri, La fabrique des énarques (Paris: Economica, 2001), 55.
48.This proportion is considerably higher than the average percentage of ENA graduates who take cabinet positions upon leaving the school (29 percent of a class). Rouban, “Les énarques en cabinet (1984–1996),” 31.
49.Olivier Debouzy, “Les avocats et le rôle du droit dans la société française,” in “Lawyers: The New Challenges,” special issue, ENA Mensuel: La revue des anciens élèves de l’ENA 329 (2003).
50.Quoted in “Georges Tron: pour moi ça a été la double peine,” Le Parisien, September 17, 2012.
51.Quoted in Le Monde, October 13, 2009.
52.If one excludes crossovers from the past two years (2013–2015), because their moves are too recent to judge whether they are permanent or not, 70 percent of crossovers were still practicing law in December 2016.
53.Tax lawyer with Linklaters & Paines quoted in Bruna Basini, “Mon conseiller fiscal est un transfuge,” L’Expansion, October 12, 2000.
54.Alexis Spire and Katia Weidenfeld, L’impunité fiscale. Quand l’État brade sa souveraineté (Paris La Découverte, 2015).
55.On the centrality of the competition policy in the field of EU polity, see Lola Avril, “Le costume sous la robe: Les avocats en professionnels multi-carte de l’État régulateur (1957–2019)” (PhD diss., Université Paris 1 Sorbonne, 2019). See also Kiran Patel and Heike Schweitzer, eds., The Historical Foundations of EU Competition Law (Oxford: Oxford University Press, 2013).