On November 19, 1993, we celebrated the fifth anniversary of the enactment of Section 16 of the Federal Arbitration Act, the appeals provision. At the five-year mark, it is well to take stock.
The section got off to a bad start. It was numbered 15 when approved but, remarkably, a second Section 15 was also enacted. That error was later repaired. The mishap was not a happy augury, however. Designed to simplify, clarify, and thereby to modernize the ancient regime governing appeals from judicial orders in arbitration cases, the section has remained in the grip of a dead hand.
The section is here examined with primary reference to the enacted text. To that end, the analysis initially puts out of mind the historical circumstances in which the section was enacted and, in the current fashion, considers the text as if written on a tabula rasa. Thereafter, the meager but relevant legislative history is considered. The exercise concludes that judicial interpretation of the section has been in the thrall of defunct preconceptions. A new beginning is necessary.