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23 Transnat'l L. & Contemp. Probs. 51 (2014)
Constitutional Coups and Judicial Review: How Transnational Institutions Can Strengthen Peak Courts at Times of Crisis (With Special Reference to Hungary)

handle is hein.journals/tlcp23 and id is 57 raw text is: Constitutional Coups and Judicial Review:
How Transnational Institutions can Strengthen Peak
Courts at Times of Crisis
(With Special Reference to Hungary)
Kim Lane Scheppele*
I.  INTRODUCTION                .......................   ..................... 51
II. SPINELESSNESS V. DEFIANCE IN CONSTITUTIONAL COUPS:
REASONS FOR PESSIMISM                       .............................. 55
III. THE HUNGARIAN CONSTITUTIONAL COUP: 2010 AND BEYOND ..... 60
IV. JUDICIAL REVIEW DURING THE CONSTITUTIONAL COUP IN
HUNGARY.................................................. 71
V. THE TRANSNATIONAL CONTEXT AND SUPPORT FOR
CONSTITUTIONAL COURTS.............................. 87
A. Council of Europe Institutions        .................    ..... 87
B. Institutions of the European Union .....            ............. 103
VI. JUDICIAL REVIEW DURING A CONSTITUTIONAL COUP,
REVISITED: REASONS FOR TEMPORARY OPTIMISM             ............. 114
I.      INTRODUCTION
The idea of a constitutional coup may seem a contradiction in terms, as it
combines the positive ideal of a constitution with the unconstitutional
reputation of a coup. The concept signals that constitutional coups have
elements of both. A constitutional coup is constitutional because there is no
break in legality, never a moment when a government does something
formally illegal to attain its desired goals. It is nonetheless a coup because
* Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson
School and University Center for Human Values, as well as Director, Program in Law and Public
Affairs, Princeton University. I would like to thank Gdbor Halmai and Mikl6s Bankuti who have
been my research partners in the effort to understand the constitutional changes in Hungary
after 2010 as well as the brave judges of the old constitutional majority on the Hungarian
Constitutional Court who tried everything they could do to stop the constitutional coup. I also
want to thank the many people who have given me information, tips, leads, and interviews on
my many trips to Budapest and in my daily trawling through the press, online postings, and
official documents about Hungary. I have been very much involved in the events I am writing
about here, so my knowledge often comes from personal experience, though backstopped in
footnotes with contemporaneous writings of journalists and others. Throughout, I have used
Hungarian legal citations and then attempted, where possible, to link to English language
documents to make the sources more widely available to both readers and cite-checkers since
Hungarian is not a widely spoken language. The events I write about here are ongoing as I
write, so I should note that my information is current as of October 2013 and does not take into
account events after that date.

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