What is the judge to do? Should he stop reading the blog post immediately? Or if he reads the post, is he obligated to alert the parties to its existence and his knowledge of it?Is there any trace of a problem here? There's the suggestion that blogging is a too-easy way around writing an amicus brief. (But so is doing an op-ed.) And there's the suggestion that blog posts are written hastily and without much editing. But judges and lawyers are thoroughly used to reading things and deciding what they are worth. (And plenty of law review articles and court briefs and cases are badly done.)
In my view, if the blog post is publicly available to anyone with Internet access, and if the blogger has not taken any steps other than publishing the post to draw it to the attention of the judges before whom a case is pending, then those judges are free to consider and rely on that information if they find it to be helpful. Such a blog post cannot be viewed as an impermissible ex parte communication any more than a New York Times editorial endorsing a particular outcome in a pending U.S. Supreme Court case could be viewed as such....
[A]judge's consultation of those blog posts is, in my view, just another form of permissible legal research.
The main thing I can think of is that blog reading can be seductive, eroding your patience for belabored writing, and judges and their clerks might read blogs out of proportion to their actual worth. A relatively small proportion of lawprofs are writing blogs, and the ones who are doing it aren't necessarily the best scholars. We're just the people who love to write in this form.
UPDATE: Howard Bashman responds to this post by recounting an event where judges were fretting about this (non)problem. Judges!