How does the Court of Appeal review mixed questions?

Following a trial on the merits, we review questions of law de novo and questions of fact for clear error. We take a functional approach toward review of most mixed questions, reviewing findings of historical fact for clear error and the application of the law to those facts de novo. We review certain fact-intensive mixed questions, such as negligence, for clear error. United States v. McConney, 728 F.2d 1195, 1200-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Washington and Alaska are the two states whose substantive law might apply to this case. We apply the choice of law rules of the state in which the district court is located to determine which state's substantive law governs. Alaska Airlines v. United Airlines, 902 F.2d 1400, 1402 (9th Cir.1990) (de novo review of district court's decision on choice of law), appeal dismissed due to settlement, 932 F.2d 1571 (9th Cir.1991).