FROM JAMES M. BURNHAM: Why Don’t Courts Dismiss Indictments? A Simple Suggestion For Making Criminal Law A Little Less Lawless.

Implementing this basic reform would require nothing more than apply- ing the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil com- plaints. Yet the same federal judges who routinely dismiss com- plaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings that is a staple of civil practice plays a central role in the ever-expanding, vague nature of federal criminal law because it largely eliminates the pos- sibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts, and because it leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.

One of many places where our problems would be reduced if judges would do their jobs.